Appeal against a decision of the Commission in Matter No. CR 51 of 2012 given on 18 July 2014

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2014 WAIRC 01361

DELIVERED : THURSDAY, 18 DECEMBER 2014

FILE NO : FBA 9 OF 2014

Appellant

AND

The Director General, Department of Education

Respondent

ON APPEAL FROM:

Jurisdiction : Western Australian Industrial Relations Commission

Coram : Commissioner S M Mayman

Citation : [2014] WAIRC 00622; (2014) 94 WAIG 1486

File No : CR 51 of 2012

CatchWords : Industrial Law (WA) - Appeal against decision of the Commission - Effect of non-compliance with time limit in s 49(3) of the Industrial Relations Act 1979 (WA) - Whether power to extend time to insitute an appeal considered - Time limit in s 49(3) procedural - Power to extend time expressly prescribed in s 27(1)(n) of the Act - Time extended - Commission at first instance dismissed the application on grounds the relief sought by the union was for enforcement of an industrial instrument - Nature of exclusive jurisiction of the Industrial Magistrate's Court considered - Commission without power to make declarations sought by the union - Order sought by the union within power - Appeal allowed - Order made at first instance suspended and case remitted for further hearing and determination

Legislation : Industrial Relations Act 1979 (WA) s 6, s 6(c), s 6(ca), s 7(1), s 22B, s 23(1), s 23A(4), s 23A(6), s 26, s 26(1)(a), s 26(1)(b), s 27, s 27(1), s 27(1)(n), s 27(1)(v), s 29, s 29(1)(b)(i), s 29(2), s 29(3), s 44, s 44(9), s 49, s 49(2), s 49(3), s 49(5)(b), s 49(6), s 83, s 83(1), s 83(3), s 83(4), s 83(5), s 83(8), s 84(3), s 84(4), s 84A, s 90, s 90(1), s 90(2), s 96K, s 96J, s 113, pt IV

Conciliation and Arbitration Act 1904 (Cth) s 2(c), s 35(2), s 35(4), s 39(1), s 40(1)(a), s 40(1)(b), s 40(1)(c), s 41, s 41(1), s 41(1)(m), s 41(2)

Government and Related Employees Appeal Tribunal Act 1980 (NSW) s 55(1)

Industrial Relations Act 1996 (NSW) s 85(1), s 85(3), s 189(1), s 189(2)

Industrial Relations Amendment Act 1993 (WA) s 10

Labour Relations Reform Act 2002 (Act No 20 of 2002) (WA) s 155

Police Act 1990 (NSW)

School Education Act 1999 (WA) s 4, s 64, s 65, s 235, s 236, s 236(2), s 237

Supreme Court Act 1935 (NSW) s 6

Teacher Registration Act 2012 (WA) s 7, s 10, s 10(2), s 12, s 17, s 21, s 124, pt 3

Transport Appeal Boards Act 1980 (NSW) s 13

Western Australian College of Teaching Act 2004 (WA) (repealed) s 30, s 31, s 36, s 37, pt 4

Industrial Relations (Western Australian Industrial Appeal Court) Regulations 1980 (WA) reg 26

School Education Regulations 2000 (WA) reg 127, reg 127A

Teacher Registration (General) Regulations 2012 (WA) reg 12

Supreme Court Rules 1970 (NSW)

Result : Order made

Representation:

Appellant : Mr M Amati, as agent

Respondent : Mr D J Matthews (of counsel) and with him Ms J C O'Meara (of counsel)

Solicitors:

Respondent : State Solicitor's Office

Case(s) referred to in reasons:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27

Arpad Security Agency Pty Ltd v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous WA Branch (1989) 69 WAIG 1287

Aurion Gold v Bilos [2004] WASCA 270; (2004) 84 WAIG 3759

Australian Glass Manufacturing Co Pty Ltd v Transport Workers' Union of Australia, Industrial Union of Workers, Western Australian Branch (1992) 72 WAIG 1499

Australian Iron & Steel Ltd v Hoogland [1962] HCA 13; (1962) 108 CLR 471

Bailey v Commissioner of Police [2014] NSWIRComm 53

Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044

Buresti v Beveridge (1998) 88 FCR 399, 401; (1998) 158 ALR 445

Christies Sands Pty Ltd v City of Tea Tree Gully (1975) 11 SASR 255

Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135

Cousins v YMCA of Perth [2001] WASCA 374; (2002) 82 WAIG 5

Crewe and Sons Pty Ltd v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1989) 69 WAIG 2623

Esze v Layer (1993) 73 WAIG 1222

Ex parte Redgrave; Re Bennett (1945) 46 SR (NSW) 122

General Motors-Holden's Ltd v Di Fazio [1979] HCA 43; (1979) 141 CLR 659

Hocine v Minister for Immigration and Multicultural Affairs (2000) 99 FCR 269

J-Corp Pty Ltd v The Australian Builders’ Labourers’ Federated Union of Workers, Western Australian Branch (1993) 73 WAIG 1185

Liquor, Hospitality and Miscellaneous Union, Western Australian Branch v The Director General, Department of Education and Training [2010] WAIRC 00089; (2010) 90 WAIG 127

Matkevich v New South Wales Technical & Further Education Commission (NSW) (1995) 65 IR 46

Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261

Metal and Engineering Workers' Union – Western Australia v AOC Australia Pty Ltd (1994) 74 WAIG 2641

Mt Newman Mining Co Pty Ltd v Transport Workers Union of Australia, Industrial Union of Workers, Western Australian Branch (1984) 64 WAIG 1075

Parisienne Basket Shoes Proprietary Limited v Whyte (1938) 59 CLR 369

Patterson v Public Service Board of NSW (1984) 1 NSWLR 237

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

R v The Judges of the Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Limited (1978) 142 CLR 113

Rail Corp (NSW) v Brown (2012) 219 IR 67

Re Coldham and Others; Ex parte The Australian Building Construction Employees’ and Builders Labourers’ Federation (1985) 159 CLR 522

Re Cram; Ex parte The Newcastle Wallsend Coal Co Pty Ltd [1987] HCA 29; (1987) 163 CLR 140

Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656

Re The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers – Western Australian Branch (2000) 106 IR 13

Rebelo v Coles New World Pty Ltd (1989) 69 WAIG 1294, Esze v Layer (1993) 73 WAIG 1222

Richardson v Cecil Bros Pty Ltd (1994) 74 WAIG 1017

Robe River Iron Associates v Federated Engine Drivers’ and Firemens’ Union of Workers of Western Australia (1986) 67 WAIG 315

Saldanha v Fujitsu Australia Ltd [2009] WASCA 119; (2009) 89 WAIG 875

Secretary of Department of Health (NSW) v Harvey (1990) 34 IR 58

Springdale Comfort Pty Ltd v Building Trades Association of Unions of Western Australia (Association of Workers) (1986) 67 WAIG 325

St Michael’s School v The Independent Schools Salaried Officers’ Association of Western Australia, Industrial Union of Workers [2000] WAIRC 00002; (2000) 80 WAIG 2839

The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2014] WAIRC 00534; (2014) 94 WAIG 800

The Colonial Sugar Refining Company, Limited v Irving [1905] AC 369

The Waterside Workers' Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434

Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386

Case(s) also cited:

BGC Contracting Pty Ltd v The Construction, Forestry, Mining and Energy Union of Workers [2004] FCA 569

BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers [2006] WASCA 49

Burswood Resort (Management) Ltd v Australian Liquor, Hospitality and Miscellaneous Workers' Union, Western Australian Branch [2003] WAIRC 09968; (2003) 83 WAIG 3556

Gadeke v Allison Pty Ltd [2006] WAIRC 03608; (2006) 86 WAIG 397

Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1989) 69 WAIG 990

The Independent Schools Salaried Officers' Association of Western Australia, Industrial Union of Workers v St Michael's School (2000) 80 WAIG 1668

The Liquor, Hospitality and Miscellaneous Union, Western Australian Branch v The Roman Catholic Bishop of Bunbury Chancery Office [2007] WAIRC 00559; (2007) 87 WAIG 1148

Reasons for Decision

SMITH AP:

Introduction

1          United Voice WA seeks to institute an appeal under s 49(2) of the Industrial Relations Act 1979 (WA) (the Act) against the decision given by the Commission, constituted by a single Commissioner, dismissing application CR 51 of 2012.

2          Application CR 51 of 2012 was an industrial matter referred by United Voice WA and initiated as an application for a compulsory conference under s 44 of the Act.  United Voice WA raised a matter on behalf of one of its members, Ms Wendy Spence, who is employed as an education assistant by the Director General, Department of Education (the Director General).  As the industrial matter was not settled it was referred for hearing and determination.  The matter referred was set out in a schedule as follows:

1. The applicant union will lead evidence to support our contentions that:

(a) The duties carried out by Ms Spence are teaching duties in that these are intrinsically part of the educational services for students with disabilities in government schools as provided by the respondent.

(b) Further, Ms Spence's duties and responsibilities - such as planning, assessing and reporting, as well as the managerial structure at the school - on specific activities, have been customarily differentiated from those pertaining to swimming instructors (or VacSwim), as these are provided for in the School Education Act Employees' (Teachers and Administrators) General Agreement 2011 due to essentially the substantive differences between such roles.

(c) The activities carried out by Ms Spence are consistent with the tenets of inclusivity' [sic] in educational services found in the curriculum, as framed by the School Curriculum and Standards Authority; as well as embodied in the Schools Plus program of the respondent.

(d) The specific terms of employment - as an education assistant - of Ms Spence at Burbridge School are an anomaly, when compared with the past and present employing practices of the respondent in respect of swimming teachers in education support centres.

2. The applicant seeks relief as follows:

(a) A declaration that the duties and responsibilities of Ms Spence are teaching functions.

(b) A declaration that such duties are beyond the scope of the duties and responsibilities of an education assistant, as per Ms Spence [sic] terms of employment.

(c) An order that the respondent make an application to the Teacher Registration Board for a limited authority to teach; where Ms Spence is the nominee of that application.

3. The respondent says Ms Spence is, and at all times has been, employed pursuant to a contract of employment under which she is an education assistant and not a teacher.

4. The respondent opposes an order being made that it make or support an application for Ms Spence to have limited registration pursuant to section 17 Teacher Registration Act 2012 because the respondent says Ms Spence has never held a teaching position (the term used within section 17(a)) within the Department and the respondent does not wish to offer Ms Spence a teaching position.

5. The respondent considers that any duties Ms Spence has carried out pursuant to her contract of employment in relation to the pool at Burbridge School were not sufficient for it to be said that she has ever held a teaching position and says that to be the holder of a teaching position within the Department, even pursuant to section 17 Teachers Registration Act 2012, a person must be capable of discharging the full duties of a teacher as set out in section 64(1) School Education Act 1999 and clause 12(1) Teachers (Public Sector Primary and Secondary Education) Award 1993.

6. The respondent says that Ms Spence has at all times performed duties within her contract of employment as an education assistant, even when performing duties in relation to the pool at Burbridge School.

7. The respondent says, with particular relevance to this matter, that the job description form for a Level 3 education assistant makes it clear that Level 3 education assistants assist teachers in the delivery of education prograrmnes [sic] which may include designing, implementing and maintaining behaviour management plans for students (which Ms Spence did) and that Level 3 education assistants undertake tasks with students within or outside the school that involve supervision of students without the presence of a teacher (which Ms Spence did). That is, the respondent says that Ms Spence has always acted within her contract of employment as an education assistant and has never carried out the duties of a teaching position.

8. Even if, which is not admitted, Ms Spence may have, alone, performed duties in relation to the pool at Burbridge School at some times which would normally have been performed by a teacher the respondent says:

(a) this should not have occurred;

(b) the performance of those duties did not make Ms Spence a teacher or make it accurate to say she was performing the duties of a teaching position to the extent or in the way that she was, or should be, a teacher; and

(c) Ms Spence will not in the future perform those duties alone as the current principal of Burbridge School, unlike some principals of Burbridge School in the past, insists that a teacher be present when students are in the pool.

9. The respondent opposes a declaration being made that the duties Ms Spence has performed in relation to the pool at Burbridge School are properly described as being those of a teaching position.

10. The respondent opposes a declaration being made that the duties Ms Spence performed in relation to the pool at Burbridge School were outside of her contract of employment as an education assistant.

11. The respondent says that the past employment of education assistants as untrained swimming teachers is not relevant to the present application for reasons in relation to which evidence will be led at hearing.

12. The respondent says that the position of swimming instructor under the School Education Act Employees' (Teachers and Administrators) General Agreement 2011 is not relevant to the present application for reasons in relation to which evidence will be led at hearing.

13. The respondent opposes an order being made that it make or support an application to the Teacher Registration Board that Ms Spence have limited registration as a teacher because:

(a) the respondent has never employed Ms Spence as anything other than an education assistant and there is a contract in place between the respondent and Ms Spence under which she is an education assistant;

(b) the respondent wishes to continue to employ Ms Spence as an education assistant pursuant to the contract of employment;

(c) the respondent has not used Ms Spence in a teaching position and, even if it had, which is denied, does not wish to use her in a teaching position in the future;

(d) the respondent does not wish to, using the language in section 17(a) Teachers Registration Act 2012, offer [Ms Spence] a teaching position because Ms Spence is, in the opinion of the respondent, not qualified to be employed in a teaching position; and

(e) there is nothing unfair about the respondent not making or supporting such an application.

3          The decision dismissing CR 51 of 2012 was delivered on 18 July 2014 and a notice of appeal was accepted in the registry against the decision on 11 August 2014.  Consequently, the appeal was filed three days out of time.  United Voice WA filed an application on the same day it filed the notice of appeal seeking an order that the Full Bench grant leave to allow it to file an appeal against the decision out of time.

4          On behalf of the Director General, it is contended that the Full Bench has no power to extend time within which to lodge an appeal.  However, it is conceded on behalf of the Director General that if the Full Bench finds that it does have power to extend time within which to lodge an appeal it does not oppose the granting of an extension of time.

Whether power to extend time – relevant provisions of the Act

5          Section 49(2) of the Act provides:

Subject to this section, an appeal lies to the Full Bench in the manner prescribed from any decision of the Commission.

6          Section 49(3) of the Act provides:

An appeal under this section shall be instituted within 21 days of the date of the decision against which the appeal is brought and may be instituted by —

(a) any party to the proceedings wherein the decision was made; or

(b) any person who was an intervener in those proceedings.

7          Section 27(1)(n) of the Act provides:

Except as otherwise provided in this Act, the Commission may, in relation to any matter before it —

(n) extend any prescribed time or any time fixed by an order of the Commission;

Does the Full Bench have power to extend time to a party or intervener to institute an appeal against a decision of the Commission?

(a) The Director General's submissions

8         On behalf of the Director General it is said that the Full Bench of the Commission has consistently relied upon the decision of Kennedy J in Cousins v YMCA of Perth [2001] WASCA 374; (2002) 82 WAIG 5, in finding that it has power to extend the time within which an appeal to it may be instituted.  It is also pointed out, however, that the appeal in Cousins focused on the issues of whether a 'cross-appeal' to the Full Bench was competent and, it having been found that it was not, whether the Full Bench had erred in not exercising its discretion to extend the time within which an appeal may be instituted.  Thus, it is said the issue of whether the Full Bench has power to extend the time within which an appeal to it may be instituted does not appear to have been the subject of contest before the Industrial Appeal Court.

9         It is submitted on behalf of the Director General that s 27(1)(n) of the Act cannot be relied upon by the Full Bench to extend the time within which an appeal to it may be instituted.  The Director General also points out that s 27(1) of the Act commences with the words 'Except as otherwise provided in this Act' which means that the powers in s 27(1) are subject to express exclusion or exclusion by necessary intendment.

10      In support of the Director General's argument that the Full Bench has no power to extend time, the Director General relies upon two decisions.

11      The first is the decision of Fielding C in Richardson v Cecil Bros Pty Ltd (1994) 74 WAIG 1017 in which the Commissioner found s 27(1)(n) of the Act was excluded by necessary intendment and thus could not empower the Commission at first instance to extend time to an employee to refer a claim of harsh, oppressive and unfair dismissal to the Commission.

12      The second is the decision of the Industrial Appeal Court in Saldanha v Fujitsu Australia Ltd [2009] WASCA 119; (2009) 89 WAIG 875.  In Saldanha the Industrial Appeal Court found there was no power to extend the time within which an appeal to the Industrial Appeal Court may be instituted.  The language in s 90(2) of the Act (which was considered by the Industrial Appeal Court) is in identical terms to s 49(3) of the Act.  It is contended that the Industrial Appeal Court held that the language in s 90(2) is such that it is clear there is no ability to extend time, whether or not there is a power that allowed for extensions of time once jurisdiction had been established.  The Industrial Appeal Court in Saldanha applied the reasoning in Patterson v Public Service Board of NSW (1984) 1 NSWLR 237 in which the Court of Appeal of the Supreme Court of New South Wales held that a power to extend time only applies in the absence of express words to the contrary or of reasonably plain intendment otherwise and that a contrary intention would be shown by providing a condition precedent to the exercise of the jurisdiction conferred or to the right to invoke it, such as a condition which makes a mandatory provision that some step shall be taken by a party (239).  The reasoning in Patterson, the Director General says, is essentially the same reasoning as that of Fielding C in Richardson.

13      Whilst it is said that the Director General accepts that the Industrial Appeal Court did not have available to it the powers under s 27(1) of the Act and so did not expressly consider s 27(1), reading s 27(1)(n) and s 90(2) of the Act together, there is no reason, other than exclusion by necessary intendment, why the Court could not extend time under s 90(2) of the Act.  In any event, it is said that it is clear that the Industrial Appeal Court considered that a power such as that found in s 27(1)(n) of the Act was not exercisable in the face of the language 'shall be instituted within 21 days from the date of the decision against which the appeal is brought' for two reasons relevant to the current matter.  These reasons are as follows:

(a) the Industrial Appeal Court expressly relied upon the decision of Patterson and James where there was such a power but the Supreme Court of New South Wales held that its exercise was excluded by the contrary intention revealed by language which imported a condition precedent to its exercise, namely, as here, a mandatory provision that a step shall be taken by a party within time (see [6] of the decision in Saldahna where the Industrial Appeal Court applied Patterson and James while noting that the Court in that case had considered and rejected reliance on an extension of time power which, it is submitted, was materially alike the power in section 27(l)(n)); and

(b) the Industrial Appeal Court held that regulation 26 Industrial Relations (Western Australian Industrial Appeal Court) Regulations 1980, which it was argued gave the Industrial Appeal Court power to extend time, could not be relied upon because 'the requirement to institute the appeal within time is not a procedural requirement, but a precondition to the competence of the appeal.' It is submitted that the Industrial Appeal Court considered that general powers to extend time were of no use in the face of language such as that used in section 90(2).

14      Thus, it is said that whilst the decision in Saldanha did not deal with the relationship between s 27(1)(n) and s 49(3) of the Act, the reasoning is directly applicable, given that the language in s 90(2) of the Act is identical and the Court found, by its reliance on Patterson and comments on reg 26 of the Industrial Relations (Western Australian Industrial Appeal Court) Regulations 1980 (WA), that a power such as that in s 27(1)(n) could not assist an appellant who had instituted an appeal out of time.

15      For these reasons, it is said that the reasoning in Saldanha is applicable and as it followed argument on the matter, whereas the decision in Cousins apparently did not, the decision in Saldanha is to be preferred and should be applied in the present case with the result that the Full Bench of the Commission does not have power to extend the time for the institution of the purported appeal before it.  Thus, it is said that the time limit in s 49(3) needs to be complied with to establish the jurisdiction to institute an appeal.

(b) Consideration

16      In Cousins the appellant had filed two notices of application.  The appellant in both applications sought an extension of time to lodge an appeal against the decision of the Commission, after the respondent had instituted an appeal against the decision.  Therefore, the appellant desired to appeal by way of a cross-appeal.  The two applications were dismissed.  The appellant appealed the decision to dismiss to the Industrial Appeal Court.  Kennedy J, with whom Scott and Parker JJ agreed, observed [45]:

The Industrial Relations Act makes no provision for a cross-appeal as such. If a party desires to appeal, that party must institute the appeal within 21 days of the date of the decision against which the appeal is brought (s 49(3)). By s 27(1)(n) of the Act, the Commission (as to which see the definition of 'Full Bench' in s 7) is empowered to extend any 'prescribed time'. Section 5 of the Interpretation Act 1984 (WA) defines the expression 'prescribed', to mean, for the purposes of this case, a time prescribed by the Industrial Relations Act. Furthermore, the appeal is to be heard and determined on the evidence and matters raised in the proceedings before the Commission (s 49(4)).

17      The point the Director General makes in this appeal is that the issue whether the Full Bench has power to make an order to extend time to institute an appeal was not an issue in contention in Cousins.  Consequently, it appears to be argued on behalf of the Director General that the observations of Kennedy J in Cousins at [45] are obiter and thus not binding on the Full Bench.

18      The issue whether the Full Bench has power to extend time in which to institute an appeal against a decision of an Industrial Magistrate was considered by the Full Bench in Arpad Security Agency Pty Ltd v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous WA Branch (1989) 69 WAIG 1287.  In that matter an application was made by a party for an order under s 27(1)(n) of the Act that the time within which an appeal against a decision of the Industrial Magistrate was to be instituted be extended.  The application was opposed by the respondent on grounds that the Full Bench does not have jurisdiction to extend time.  The limitation of time to bring an appeal in s 84(3) is expressed in the same terms as s 49(3) of the Act.  In Arpad Security Agency counsel for the respondent, Mr Le Miere, submitted that:

(a) pursuant to s 84(3) of the Act there is a mandatory requirement that an appeal be instituted within 21 days;

(b) it is a precondition for the jurisdiction to exist that the appeal be filed in time;

(c) section 27(1)(n) of the Act is not a jurisdictional provision, but a section which confers procedural powers once jurisdiction exists; thus if the notice of appeal is not filed within 21 days, then the jurisdiction which potentially exists is gone and cannot be resuscitated; and

(d) within the meaning of s 27(1)(n), s 84(3) is a provision which 'otherwise provides', within the meaning of s 27(1).  That is because it provides an appeal should be brought within 21 days.

19      The Full Bench rejected the argument put on behalf of the respondent.  It applied the unanimous reasoning of the High Court in Re Coldham; Ex parte The Australian Building Construction Employees’ and Builders Labourers’ Federation [1986] HCA 87; (1985) 159 CLR 522 in which a similar issue arose in respect of the power of the Australian Conciliation and Arbitration Commission to extend the time prescribed to lodge an appeal to the Full Bench of that Commission.  In Re Coldham s 35(2) of the Conciliation and Arbitration Act 1904 (Cth) provided that an appeal shall be made within 21 days after the date of the award or decision appealed against.  By s 41(1) of the Conciliation and Arbitration Act the Commission was given wide powers in relation to an industrial dispute and by s 41(2) a reference in s 41(1) to an industrial dispute was expressed as 'shall, unless the contrary intention appears, be read as including a reference to any other proceedings before the Commission'.  Further, by s 41(1)(m) of the Conciliation and Arbitration Act the Commission had power to extend any prescribed time.  Gibbs CJ, Wilson and Dawson JJ found that there was no apparent reason why the general provisions of s 41 should not apply to the hearing of an appeal at all its stages, including a hearing whether the appeal had been properly instituted (529).  Their Honours then went on to find (529 - 530):

The fact that the prescribed time had expired before the application for extension was made presents no barrier to the exercise of the Commission's powers. The provisions of ss. 2(c), 39(1) and 40(1)(c) reveal a clear and understandable intention that proceedings before the Commission should be directed to the merits and that technicalities and legal forms should not be regarded. The result reached in Amalgamated Television Services Pty. Ltd. v. Professional Radio Employees' Institute of Australasia, which was naturally followed in the present case, is a very technical result indeed, and contrary to the intention revealed by those provisions. There is nothing in the Act that suggests that the power given by s. 41(1)(m) cannot be exercised after the prescribed time, which is sought to be extended, has expired, if the circumstances justify that course. (The expression 'prescribed time' in s. 41(1)(m) refers to a time prescribed by the Act or the regulations thereunder: s. 17(q) of the Acts Interpretation Act 1901 (Cth), as amended.) It is true that many rules of court expressly provide that the court may extend a period of time within which a person is required or authorized to act, although the application for extension is not made until after the expiration of that period, but that does not mean that such a provision is necessary in all cases to enable a period of time which has expired to be extended. It has recently been held in England that even in the absence of any such provision a court has an inherent power to control its own procedure and enlarge time after the prescribed time has elapsed, and that the older notion, that when the time has expired without the necessary action having been taken the action is dead and cannot be revived, is erroneous: Reg. v. Bloomsbury Court; Ex parte Villerwest Ltd. ([1976] 1 W.L.R. 362; [1976] 1 All E.R. 897); Samuels v. Linzi Ltd. ([1981] Q.B. 115). In those cases the court declined to follow an earlier line of authorities which was accepted as correct by this Court in Bailey v. Marinoff ((1971) 125 C.L.R. 529) - a case which is distinguishable from the present in that the litigation there had been regularly concluded by a formal order of the court, and which in any case rests on a principle which is subject to exceptions: Wentworth v. Attorney-General (N.S.W.) ((1984) 154 C.L.R. 518, at p. 526). The question in the present case must be answered by deciding what is the true intention of the statutory provision which fixes the time, and having regard to the object of the Act, and the intention revealed by the provisions already mentioned, ss. 35 and 41 cannot be regarded as intended to place a technical impediment in the way of the settlement of an industrial dispute on its merits, or as denying to the Commission the power to extend the time prescribed for instituting an appeal when the Commission in its discretion considers that such an extension would be desirable.

20      After referring to part of this passage in Re Coldham, the Full Bench in Arpad Security Agency made the following findings (1288 - 1289):

Thus, on that authority which we now apply, it is clear that there is power to extend the time for appeal. That is for the following reasons:-

(a) The Commission is a Court of Record (see section 12), so that the comments made at p. 220 of the report of the judgment in Coldham's Case (op. cit.) are applicable.

(b) Having regard to the objects of the Act set out in section 6 and section 27, section 84(3) cannot be regarded as being intended to place a technical impediment in the way of the Full Bench. Section 6(c) lends this emphasis to the provisions of the Act.

(c) Indeed, the words 'unless otherwise provided in this Act', contained in section 27(1), do not prevent the Commission extending time within which to file an appeal. Those words govern the exercise of the powers conferred upon the Commission by section 27. (Those powers exist 'in relation to any matter before it'. There is no limitation there). One of those powers is the power contained in section 27(1)(n) to extend 'any prescribed time'. Any prescribed time is as defined in Coldham's Case (op. cit.). The time of 21 days set out in section 84(3) is a 'prescribed time'. The time prescribed by regulation 78(3) is 'a prescribed time'.

However, those prescriptions do not 'otherwise provide', within the meaning of those words as they appear in section 27(1).

In other words, section 84(3) contains no provision which prevents the exercise of the power conferred by section 27(1)(n). Regulation 78(3) could not 'otherwise provide' for the purposes of section 27, because it is a regulation. Regulation 78(3) is not 'in this Act', in the words of section 27(1). It merely contains a prescribed time, and requires filing of the notice of appeal within that time. There is no exclusion of the power under section 27(1)(n), either express or implied. In fact, the expression a 'prescribed time' provides the basis for the exercise of that power. If that were not so, one would expect to find words such as, for example, 'and this time shall not be extended or otherwise altered'. Those words do not appear in section 84(3).

(d) Further, Coldham's Case (op. cit.) which deals with the then applicable Commonwealth legislation, legislation which is on all fours with this legislation, in its essential features, is authority for the proposition:-

(i) that the power to extend time can be exercised after the expiry of the prescribed time;

(ii) that the Commission as a Court of Record has power to govern its own procedure in any event and extend time;

(iii) that, that power exists and the appeal is not dead for that purpose, even though sought to be filed, as provided, out of time:

(iv) that statutorily, that power to extend exists in section 27(1) of the Act.

(e) That is fortified by the necessity to construe the Act according to its objects. Section 26(1) supports what we say, as does section 6(c).

(f) There is some distinction between section 41 of the Conciliation and Arbitration Act which contained the words 'any proceedings before the Commission', and section 27 of the State Act, which contains the words 'any matter before it'. In Coldham's Case (op. cit.) it was submitted, in a similar manner to what was submitted here, that since no appeal had been instituted there were no proceedings in those matters in which the powers of section 41 could be exercised, and further, that the power to extend time could not be invoked after the relevant time had expired.

The High Court held (see pp. 219-220) that:-

The word 'proceedings' has frequently been said to have a wide and general application, and it would certainly include both an appeal and an application for an amendment or an extension of time. If a notice of appeal has been given, and, when the matter comes before a Full Bench, it appears that notice is so defective in substance that it fails to institute the desired appeal, an application for an order allowing an amendment, or correcting the defect, or extending the time for lodging the notice of appeal, either forms part of, or in itself constitutes, proceedings before the Commission in which the powers given by section 41 to make an order of those kinds can be exercised, unless some other section of the Act indicates that the provisions of section 41 are inapplicable to the particular proceedings in question. There is no apparent reason why the general provisions of section 41 should not apply to the hearing of an appeal at all its stages, including a hearing of the question whether the appeal has been properly instituted.

Similarly in section 27 the word 'matter' is, it seems to us, even wider than the word 'proceedings', and thus, a fortiori, the same power exists even after time has run out, for the Commission to extend time, on application. In our opinion, the word 'matter(s)', in this context, means 'a controversy come before a Court of Justice', (see South Australia v. Victoria [1911] 12 CLR 667 per Griffith CJ. at p. 674-675). Thus, Coldham's Case (op. cit.) is still a most apposite authority.

There is clearly power in the Commission here, to extend the time within which a notice of appeal can be filed. That power extends to the prescribed time also for filing an application to extend time, which appears in regulation 78(3). Regulation 78(3), as a regulation could not be read as inhibiting the exercise of that power, and in fact, may attract the exercise of that power conferred by section 27(1)(n). The power exists, therefore, after the time prescribed has expired.

21      Whilst Arpad Security Agency concerned an appeal sought to be instituted against a decision of an Industrial Magistrate under s 84(4) of the Act, it has been accepted since the decision was made that the Full Bench has power to extend time to institute an appeal under s 49 of the Act against a decision of the Commission:  see, for example, Rebelo v Coles New World Pty Ltd (1989) 69 WAIG 1294, Esze v Layer (1993) 73 WAIG 1222 and Metal and Engineering Workers' Union – Western Australia v AOC Australia Pty Ltd (1994) 74 WAIG 2641.

22      The contentions raised on behalf of the Director General in this matter are similar to the arguments raised in Arpad Security Agency.

23      The first matter the Full Bench must turn its mind to in this appeal is whether the reasoning of the Full Bench in Arpad Security Agency should not be followed.  In Liquor, Hospitality and Miscellaneous Union, Western Australian Branch v The Director General, Department of Education and Training [2010] WAIRC 00089; (2010) 90 WAIG 127 I considered the principles that apply when an appellate body considers whether to overturn an earlier decision.  At [12] - [13] I observed:

In Nguyen v Nguyen (1990) 169 CLR 245 Dawson, Toohey and McHugh JJ observed in relation to the ability of a State Supreme Court to overturn an earlier decision that:

Where a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong.  The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predicability [sic] of the law:  see Queensland v The Commonwealth (1977) 139 CLR 585 at 620 per Aickin J.

This Court has never regarded itself as bound by its own decisions, which is all the more appropriate now that it is a court of last resort for all purposes.  There is a point of view that different considerations should govern the situation of an intermediate court of appeal:  see Young v Bristol Aeroplane Co Ltd [1944] KB 718; Davis v Johnson [1979] AC 264; Miliangos v Frank (Textiles) Ltd [1976] AC 443.  But even if that view were correct, now that appeals to the High Court are by special leave only, the appeal courts of the Supreme Courts of the States and of the Federal Court are in many instances courts of last resort for all practical purposes.  There is no equivalent of s 12 of the Administration of Justice Act 1969 (UK) to authorize 'leap-frog' appeals which would by-pass those courts as the Court of Appeal may be by-passed in the United Kingdom.  See, however, Sanofi v Parke Davis Pty Ltd [No 1] (1982) 149 CLR 147.  In these circumstances, it would seem inappropriate that the appeal courts of the Supreme Courts and of the Federal Court should regard themselves as strictly bound by their own previous decisions.  In cases where an appeal is not available or is not taken to this Court, rigid adherence to precedent is likely on occasions to perpetuate error without, as experience has shown, significantly increasing the corresponding advantage of certainty (269 - 270).

This reasoning was applied by the Full Bench in Hanssen Pty Ltd v Construction, Forestry, Mining and Energy Union (Western Australian Branch) [2004] WAIRC 10828; (2003-2004) 84 WAIG 694.

Unlike other courts of appeal, the High Court has power to review and depart from its previous decisions.  However, such a course is not lightly undertaken.  In The Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49 Stephen J (59) with whom Aickin J agreed (66) specified the following four matters that will justify departure by the High Court from earlier decisions.  These are:

(a) The earlier decisions do not rest on a principle carefully worked out in a significant succession of cases;

(b) There was a difference between the reasons of the justices constituting the majority in one of the earlier decisions;

(c) The earlier decisions have achieved no useful result but to the contrary have led to considerable inconvenience;

(d) The earlier decisions have not been independently acted on in a manner which militates against reconsideration.

This criteria was applied in John v Commissioner of Taxation of the Commonwealth of Australia (1989) 166 CLR 417, by Mason CJ, Wilson, Dawson Toohey and Gaudron JJ (438 - 439).  Whilst it is the case that the Full Bench can overrule its own decisions it is my view that it should only do so when an earlier decision is patently wrong in law and when at least one of criteria set out by Stephen J in Hospital Contribution Fund is made out.

24      Thus, the first question that must be answered is whether the decision in Arpad Security Agency is patently wrong in law.

25      I do not agree that the observations made by Wheeler JA in Saldanha, with whom Pullin JA and Le Miere J agreed, supports the Director General's submission that the Full Bench has no power to extend time to an applicant to institute an appeal.  At [5] of her Honour's reasons for decision, Wheeler JA observed:

It has often been noted that the right of appeal is a creature of statute. The rights that an appellant has are therefore those conferred by the statute. Further, the Industrial Appeal Court is itself a statutory court having a limited jurisdiction. There is in the IR Act no express power to extend the time within which an appellant may appeal to the Industrial Appeal Court. The relatively simple question which arises therefore is whether any power to extend time may be implied from the IR Act. In my view, it cannot.

26      As her Honour observed, the Industrial Appeal Court is a statutory court which has a limited jurisdiction.  Whilst the judges who sit on the Industrial Appeal Court are judges of the Supreme Court (see the definition of 'judge' in s 7(1) of the Act), the Industrial Appeal Court exercises no powers of the Supreme Court and has no inherent jurisdiction of the Supreme Court.  The jurisdiction, powers and functions of the Industrial Appeal Court are solely found in Part IV of the Act and in s 96K of the Act.  Section 96K confers jurisdiction on the Industrial Appeal Court to hear and determine an appeal against a decision made under s 96J by the Industrial Magistrate's Court.  Section 96K prescribes a different scheme of the limits imposed on the time to bring an appeal than the right to appeal a decision of the Commission prescribed by s 90.  Section 90(1) and s 90(2) provide as follows:

(1) Subject to this section, an appeal lies to the Court in the manner prescribed from any decision of the President, the Full Bench, or the Commission in Court Session —

(a) on the ground that the decision is in excess of jurisdiction in that the matter the subject of the decision is not an industrial matter; or

(b) on the ground that the decision is erroneous in law in that there has been an error in the construction or interpretation of any Act, regulation, award, industrial agreement or order in the course of making the decision appealed against; or

(c) on the ground that the appellant has been denied the right to be heard,

but upon no other ground.

(2) An appeal under this section shall be instituted within 21 days from the date of the decision against which the appeal is brought and may be instituted —

(a) by any party to the proceedings wherein the decision was made; or

(b) by any other person who was an intervener in those proceedings.

27      Of importance, the Court is not the Commission.  Thus, in the exercise of its jurisdiction the Court cannot invoke the powers conferred upon the Commission in s 26 or s 27 of the Act.

28      In Saldanha the observations made by Wheeler JA are essentially that the scheme in Patterson that provided for a right of appeal from a decision of the Government and Related Employees Appeal Tribunal (the Tribunal) to the Court of Appeal of New South Wales was analogous to the statutory scheme of appeal to the Industrial Appeal Court established by the provisions of the Act.

29      In Patterson s 55(1) of the Government and Related Employees Appeal Tribunal Act 1980 (NSW) provided that an appeal from the Tribunal 'shall be made within 21 days after the date of the Tribunal's decision on the question of law the subject of the appeal and shall be made in accordance with the rules of the Supreme Court'.  The question arose whether the power to enlarge time for appeal provided by the New South Wales Supreme Court rules applied to an appeal from the Tribunal.  However, the rule which dealt with appeals to the Court of Appeal provided that 'an appeal must be instituted within 28 days after the material date or within such extended time as the court below or the Court of Appeal may fix'.  It was argued that this rule could be relied upon to empower the court to enlarge time by applying the well-known principle that when the legislature confers jurisdiction on a court to hear and determine a matter it imports the ordinary incidents and procedures of the court including its relevant rules and cases cited therein (239).  Moffitt P, with whom Glass and Priestley JJA agreed, held that the principle relied on was no more than a rule of construction and only applies in the absence of express words to the contrary or of reasonably plain intendment and that a contrary intendment was found in s 55(1) of the Government and Related Employees Appeal Tribunal Act which provided for a time limit of 21 days whereas the rule of court provided for 28 days.  It was also found that as s 55(1) was the later statutory provision, s 6 of the Supreme Court Act 1935 (NSW) did not apply (239).

30      Wheeler JA in Saldanha, after having regard to the facts in Patterson, found there was a significant difference between the legislation in Patterson and the provisions of the Act.  She also found that there is not a reference in the Act to the Supreme Court or Court of Appeal Rules (which provide for extensions of time) [6].

31      Her Honour drew from Patterson two principles.  The first is that an appeal is a creature of statute.  The second is that the subject matter and legislative policy of the Act is an important factor to be considered when determining whether the court has power to extend time.  In [8] her Honour observed:

In Patterson, Moffitt P considered the subject matter of the Act to be of significance. It dealt broadly with aspects of Public Service organisation, including questions of circumstances in which an officer of the Public Service might be dismissed. His Honour considered (at 240) that policy considerations suggested that there was legislative policy of ensuring certainty in relation to decisions of that kind, once the time limit for appeal had passed. In my view, similar policy considerations may be discerned in the IR Act. The 'Objects' section, s 6, places emphasis on negotiation and agreement as a means of settling disputes. Section 90, which invests the court with jurisdiction to hear appeals from the Full Bench, confers jurisdiction only in the very limited circumstances of excess of jurisdiction in that the matter was not an industrial matter; error of law in erroneously construing any Act, regulation, award, industrial agreement or order; and want of procedural fairness. Taken together, these provisions indicate a legislative policy that negotiation rather than litigation is preferable, and that resort to the Industrial Appeal Court is to be permitted only in strictly limited circumstances. It would be consistent [sic] this court, after which this court would not have power to extend time. The reasons in Patterson, which, in my view, this court should apply, lead to a conclusion that the appeal is incompetent.

32      Her Honour also observed that there is no indication in the Court's regulation making power, conferred by s 113 of the Act to make regulations providing for the extension of time for the doing of any act [9].  She also rejected the appellant's argument that reg 26 of the Industrial Relations (Western Australian Industrial Appeal Court) Regulations could be relied upon to empower the Court to extend time.  Regulation 26 provides:

(1) The Court may, in relation to any proceeding before it and the Presiding Judge may, in relation to any proceeding before him, in special circumstances, and either absolutely or subject to conditions, exempt any person from compliance with any procedural requirement of these regulations.

(2) Non‑compliance with any of these regulations shall not render void any proceedings before the Court, or the Presiding Judge, but the proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the Court, or the Presiding Judge, as the case may be, thinks fit.

33      After referring to reg 26, her Honour found that the requirement under s 90 of the Act to institute an appeal to the Court within time is not a procedural requirement, but a precondition to the competence of the appeal.

34      In any event (although Wheeler JA did not so find), reg 26 only empowers the Court to waive procedural requirements found in the  Industrial Relations (Western Australian Industrial Appeal Court) Regulations, whereas the limit for appeals to the Court is found in s 90 of the Act.

35      I agree that the reasoning applied by Wheeler JA in Saldanha is in part the same as applied by Fielding C in Richardson.  However, I do not agree that it necessarily follows that s 27(1)(n) of the Act does not provide the Full Bench with power to make an order to enlarge the time for a party or an intervener to institute an appeal.

36      In Richardson Fielding C found the Commission had no power to extend the time to the applicant to refer a claim under s 29(1)(b)(i) of the Act that she was harshly, oppressively and unfairly dismissed by her employer on 2 December 1993.  The decision of Fielding C was delivered on 14 March 1994.  The day before the applicant was dismissed an amendment to s 29(2) of the Act came into effect on 1 December 1993 which provided that (s 10 of the Industrial Relations Amendment Act 1993 (WA)):

A referral by an employee under subsection (1)(b)(i) cannot be made more than 28 days after the day on which the employee's employment terminated.

37      Commissioner Fielding observed that power to extend time in s 27(1)(n) of the Act is conditioned by the caveat, '(e)xcept as otherwise provided in this Act' (1017).  He then found (1017 - 1018):

In my view, the Act does indeed 'otherwise provide' in respect of the time limit for lodging applications under section 29(1)(b)(i). The Act by section 29(2) stipulates that such applications 'cannot' be referred to the Commission more than 28 days after the date of dismissal. To permit an employee to refer such a matter after that date is to do what the Act clearly says 'cannot' be done.

There is a marked difference between the way in which the Act deals with time limits for other proceedings instituted in the Commission as, for example, proceedings under sections 48, 49 and 84. In those cases, the Act merely stipulates that such proceedings (i.e. appeals) 'shall' be instituted within a given time, not that they 'shall not' or 'cannot' be dealt with after a given time, as is the case in respect of proceedings instituted under section 29(1)(b)(i). Thus, the decision of the Full Bench in Arpad Security Agency Pty Ltd v. The Federated Miscellaneous Workers Union of Australia, Hospital, Service & Miscellaneous, WA Branch (1989) 69 WAIG 1287 which held that the Commission was empowered by section 27(1)(n) to extend the time limit imposed by section 84, even out of time, is distinguishable. For the same reasons, section 64 of the Interpretation Act 1984, which authorises a power to extend time to be exercised out of time, is of no assistance to the Applicant, if, which is doubtful, it has any application to section 27(1)(n) of the Industrial Relations Act 1979.

There is a difference between a time limit which conditions the exercise of jurisdiction and the time limit which governs its exercise (see: General Motors Holden's Ltd v. Di Fazio (1979) 141 CLR 659). It is apparent from section 29(2) that the time limit stipulated therein is an integral part of and conditions the right of a former employee to refer an application to the Commission alleging harsh, oppressive or unfair dismissal from employment. In those circumstances, there is much to be said for the view that the power to extend time has no application in this case since on its proper construction section 29(2) does not merely attach a time limit for instituting the proceedings, but imposes a time limit 'which is an essential condition of the right itself and unless the condition is satisfied there is no right' in respect of which to extend the time (see: per Burt J in State Energy Commission of Western Australia Salaried Officers Association v. Western Australian Industrial Relations Commission (1975) 55 WAIG 747, 748. As rightly pointed out by Mr Gillam, the 28 day limitation is not a 'prescribed time' in the sense referred to in section 27(1)(n) but, rather, a time limit which proscribes the right to bring proceedings. Thus, quite apart from the limited nature of the power to extend the prescribed time under the Act imposed by the general caveat to section 27(1), the provisions of section 27(1)(n) have no application to proceedings under section 29(1)(b)(i). Section 27(1) does not extend the jurisdiction of the Commission but, rather, gives it powers incidental to the exercise of its established jurisdiction (see too: Robe River Iron Associates v. Federated Engine Drivers and Firemen's Union (1987) 67 WAIG 315; see too: Re Gas Employees (Victoria) Award (1948) 61 CAR 200).

38      Importantly, Fielding C distinguished the way in which the Act deals with time limits for appeals instituted under s 49 of the Act and the decision of the Full Bench in Arpad Security Agency.

39      In Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 Fullagar J explained the distinction between statutes dealing with procedure and statutes of a procedural character, is that (286):

[I]t is between statutes which create or modify or abolish substantive rights or liabilities on the one hand and statutes which deal with the pursuit of remedies on the other hand.

40      His Honour then went on to observe that statutes of limitation which are traditionally regarded as procedural which impose a time limit are concerned with remedies as distinct from rights (286):  see also General Motors-Holden's Ltd v Di Fazio [1979] HCA 43; (1979) 141 CLR 659.

41      The effect of non-compliance with a procedural provision that does not erect a bar to the enforcement of a right to bring an action (as found in Richardson), is that compliance can be waived or an opposing party can be estopped from raising non-compliance in certain circumstances.

42      The effect of time limits that impose a condition of a new right was explained by Windeyer J in Australian Iron & Steel Ltd v Hoogland [1962] HCA 13; (1962) 108 CLR 471.  At (488 - 489) his Honour said:

Statutory provisions imposing time limits on actions take various forms and have different purposes. Some are for preventing stale claims, some for establishing possessory titles, some for the protection of public authorities, some in aid of executors and administrators. Some are incidents of rights created by statutes. Some prevent actions being brought after, some before, a lapse of time. It may be that there is a distinction between Statutes of Limitation, properly so called, which operate to prevent the enforcement of rights of action independently existing, and limitation provisions annexed by a statute to a right newly created by it. In the latter case the limitation does not bar an existing cause of action. It imposes a condition which is of the essence of a new right. The distinction was adverted to in The Crown v. McNeil ((1922) 31 C.L.R. 76, at pp. 96, 100); and in Maxwell v. Murphy ((1957) 96 C.L.R. 261); and see Gregory v. Torquay Corporation ([1911] 2 K.B. 556, at p. 559 (affirmed [1912] 1 K.B. 442)) and Erskine v. Adeane ((1873) L.R. 8 Ch. 756, at p. 760). It seems that, under the common law system of pleading, when a limitation is annexed by a particular statute to a right it creates, the plaintiff should allege in his declaration that the action was brought within time. On the other hand it is for the defendant to plead the Statute of Limitations as a defence to an action on a common law cause of action, as if he does not it is assumed that he intends to waive it: see Chapple v. Durston ((1830) 1 C. & J. 1, at p. 9 [148 E.R. 1311, at p. 1314]). However, when issue is joined on a plea of the Statute, the burden of proving that the action is within time is on the plaintiff: see cases referred to by Dixon J., as he then was, in Cohen v. Cohen ((1929) 42 C.L.R. 91, at p. 97). And, even when a time limit is imposed by the statute that creates a new cause of action or right, it may be so expressed that it is regarded as having a purely procedural character, as a condition of the remedy rather than an element in the right; and in such cases it can, it seems, be waived, either expressly or in some cases by estoppel: Wright v. John Bagnall & Sons Ltd. ([1900] 2 Q.B. 240); Lubovsky v. Snelling ([1944] K.B. 44).

43      In some decisions legislative provisions that abolish substantive rights or liabilities are referred to as substantive or jurisdictional, or as creating an essential condition which forms part of a statutory right.

44      After the decision in Richardson was delivered, s 29 was amended to provide in s 29(3) of the Act an express power to extend time to an employee to refer a claim under s 29(1)(b)(i) of the Act.  In Aurion Gold v Bilos [2004] WASCA 270; (2004) 84 WAIG 3759 McLure J, with whom Steytler J agreed, characterised the effect of s 29(3) as a substantive provision and found the power to extend time in s 29(3) was to extend the jurisdiction of the Commission to deal with a matter rather than create an exercise of a power in relation to a matter already within jurisdiction.  At [18] - [28] her Honour observed:

The Commission has power to make orders on unfair dismissal claims pursuant to ss 23A and 44 (the compulsory conference power) of the Act. Finally, before and since the introduction in 1993 of the time limit in s 29(2), the Commission has had general power by s 27(1)(n) of the Act to extend any prescribed time. That section materially provides:

'Except as otherwise provided in this Act, the Commission may, in relation to any matter before it -

(n) extend any prescribed time or any time fixed by an order of the Commission'.

Under the Interpretation Act 1984 (WA), 'prescribed' means prescribed by or under the written law in which the word occurs.

In a series of decisions the Commission and Full Bench, relying on the plainly prohibitive language in the former s 29(2), held that compliance with the time limit was an essential condition of the right to refer to the Commission an unfair dismissal claim and failure to comply rendered proceedings a nullity: Satie v Swan Television and Radio Broadcasters Ltd (1999) 79 WAIG 955 at 955 - 956; Old Ferry Co Pty Ltd v Mario Gino Bertelli (1999) 79 WAIG 3547 at 3549 - 3550; E J Richardson v Cecil Bros Pty Ltd (1994) 74 WAIG 107 [sic] at 1017 - 1018; Westrail v Durham (1994) 74 WAIG 1882.

Thus, the prevailing view was that under the former s 29(2) referral within 28 days was an essential preliminary to the exercise of the Commission's power or authority and went to the jurisdiction of the Commission (see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 389).

There is also authority that the general provision giving the Commission the power to extend time did not apply to the time limit in the former s 29(2), either because the Act otherwise provided in s 29(2) or because the general power does not apply to extend the jurisdiction of the Commission but, rather, gives it power incidental to the exercise of its established jurisdiction: E J Richardson v Cecil Bros Pty Ltd (supra) at 1017 - 1018.

It appears this Court was never called on to rule on the proper construction of s 29(2) before it was amended. There is authority in this Court that s 29(1)(b) does not expand the Commission's jurisdiction: Coles Myer Ltd (supra). However, it does not follow from the reasoning or result in that case that the time limit in s 29(2) is procedural rather than substantive and jurisdictional. Section 23 is to be read subject to the Act. The language of the former s 29(2) was peremptory and prohibitive. Further, the legislature clearly intended to treat employees differently from other applicants. In my view, the conclusion that compliance with the time limit in the former s 29(2) was an essential condition of the right and the Commission did not have power to extend time was correct. It is consistent with the approach and analysis taken by the High Court in David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265.

It was in the context of the decisions to which I have referred that the legislature acted to ameliorate the position. In the second reading speech for the Amendment Act, the relevant Minister said:

'The present 28-day time limit for lodging claims is considered too inflexible and has denied just outcomes in cases of genuine need in the past. Accordingly, the commission will have the ability to hear claims lodged out of time if it considers it would be unfair not to do so.'

The first sentence is an acknowledgment of the decisions to the effect that the time limit was jurisdictional and could not be extended. The central question is whether in enacting s 29(2) and (3) in their current form the legislature intended to change the character of the time limit from one which forms part of a statutory right (and thus is substantive and, in context, jurisdictional) to one which is merely procedural and only bars the remedy. In construing the legislation, regard must be had to the consequences that flow from its characterisation.

The appellant contends that the Commission has jurisdiction to hear a referral by an employee of an unfair dismissal claim only if the referral is made within the prescribed time or at a later time if the referral is accepted by the Commission after making a finding that it would be unfair not to accept the referral. The consequences if the referral is not made within time or the Commission does not accept the referral under subs (3) are that the proceedings would be a nullity; the conditions (being, in effect, conditions precedent to the exercise of jurisdiction) cannot be waived, even if they are imposed for the benefit of the party said to have waived it; and the proceedings cannot be subsequently validated with retrospective effect, that is, on a nunc pro tunc basis: Commonwealth v Verwayen (1990) 170 CLR 394 at 422 - 428; Re Monger; Ex parte Cross [2004] WASCA 176 at [178].

On the other hand, if the requirements in subs (2) and (3) are procedural, the proceedings would not be a nullity, the requirements could be waived and the proceedings validated subsequently on a nunc pro tunc basis: Emanuele v Australian Securities Commission (1997) 188 CLR 114; Re Monger; Ex parte Cross (supra) at [165].

There are strong indications that compliance with subs (2) or (3) constitute an essential preliminary to the exercise of the Commission's jurisdiction. Firstly, if the legislature intended to alter the character of the time limit in subs (2) from substantive to procedural, it is to be expected that the general provision in s 27(n) to extend time would apply, in which event subs (3) would be unnecessary. Secondly, subs (3) gives the Commission an entitlement to 'accept a referral', which language is indicative of an extension to the Commission's jurisdiction rather than the exercise of a power in relation to a matter already within jurisdiction. Thirdly, there is nothing in the second reading speech to the Amendment Act to suggest the legislature intended to alter the existing character of the time limit as a condition of the exercise of the right but merely to increase the flexibility of its application.

45      When construing legislation the provisions of the Act must be read in its entirety in context and may require consideration of the general purpose and policy of the provisions:  Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] (McHugh, Gummow, Kirby and Hayne JJ); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 [47] (Hayne, Heydon, Crennan and Kiefel JJ) and Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044 [41] (French CJ and Crennan J).  In construing a power to extend time for compliance, the policy revealed in the legislation must be analysed:  Saldanha [8].

46      In Re Coldham Gibbs CJ, Wilson and Dawson JJ construed the provisions of the Conciliation and Arbitration Act (which provided for the power to extend any prescribed time and the time limit on appeals to the Full Bench) by finding (526 - 527):

The provisions of the Act should be construed to give effect to its objects which, according to s. 2(c), include 'to provide means of preventing and settling industrial disputes not resolved by amicable agreement, including threatened, impending and probable industrial disputes, with the maximum of expedition and the minimum of legal form and technicality'. By s. 39(1) it is provided that in relation to 'an industrial dispute with which the Commission is dealing, the Commission shall, in such manner as it thinks fit, carefully and expeditiously hear, inquire into and investigate the dispute and all matters affecting the merits of the dispute and the right settlement of the dispute'. By s. 40(1) it is provided that in the hearing and determination of an industrial dispute or in any other proceedings before the Commission-

'(a) the procedure of the Commission is, subject to this Act and the regulations, within the discretion of the Commission;

(b) the Commission is not bound to act in a formal manner and is not bound by any rules of evidence but may inform itself on any matter in such manner as it thinks just; and

(c) the Commission shall act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms.'

47      At (529) their Honours held that these provisions reveal a clear and understandable intention that proceedings before the Commission should be directed to the merits and that technicalities and legal forms should not be regarded.  They then found that there was nothing in the Conciliation and Arbitration Act that suggests that the power given by s 41(1)(m) cannot be exercised after the prescribed time, which is sought to be extended, has expired, if the circumstances justify that course (529).

48      It is notable that in substance, equivalent legislative objects and commands found in s 2(c), s 39(1), s 40(1)(a), s 40(1)(b) and s 40(1)(c) of the Conciliation and Arbitration Act are to be found in the Act.  In particular:

(a) subject to the Act, the Commission has 'cognizance of and authority to enquire into and deal with any industrial matter' (s 23(1));

(b) it is a principal object of the Act to 'provide means for preventing and settling industrial disputes not resolved by amicable agreement, including threatened, impending and probable industrial disputes, with the maximum of expedition and the minimum of legal form and technicality' (s 6(c));

(c) in the performance of its functions the Commission is to act with as much speed as the requirements of the Act and a proper consideration of the matter before it permit (s 22B);

(d) in the exercise of its jurisdiction under the Act the Commission shall:

(i) act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms (s 26(1)(a)); and

(ii) not be bound by any rules of evidence, but may inform itself on any matter in such a way as it thinks just (s 26(1)(b)); and

(e) whilst s 41(1) of the Conciliation and Arbitration Act was expressed to apply 'unless the contrary intention appears' and s 27(1)(n) of the Act is expressed to apply 'except as otherwise provided in this Act', there is in effect no difference between the operation of each formula:  see the discussion in Buresti v Beveridge (1998) 88 FCR 399, 401; (1998) 158 ALR 445, 447 and the observations of learned authors D C Pearce and R S Geddes in Statutory Interpretation in Australia (8th ed) [6.2].

49      When the provisions of the Act referred to in [48] of these reasons are read together with s 49(3) of the Act there is nothing in those provisions that prohibit the power in s 27(1)(n) being exercised by the Full Bench to extend time to institute an appeal against a decision of the Commission.  In particular, there is nothing 'otherwise provided' in the Act which would exclude the operation by the Full Bench of the power to extend time in s 27(1)(n) of the Act.

50      Other than the principal objects of the Act, these provisions have no application to the jurisdiction conferred upon the Industrial Appeal Court who can only hear appeals in limited circumstances and is not empowered with any of the powers and functions of the Commission in s 27(1) of the Act.

51      Importantly, the subject matter of appeals to the Full Bench from any decision of the Commission is unrestricted.  Whilst the Full Bench is required pursuant to s 22B of the Act to act with as much speed as the requirements of the Act and a proper consideration of the matter before it permit, there is nothing in the Act that provides for a legislative policy of ensuring certainty in relation to decisions of the Commission.  Patterson concerned a right of appeal from dismissal from the public service.  Moffitt P discerned that there was a policy in the provisions of the Government and Related Employees Appeal Tribunal Act that replacement appointment of a dismissed officer could be made if there was certainty of no appeal after the time for filing an appeal had expired (240).

52      Appeals against decisions of the Commission are not confined to dismissals, but the Full Bench is called upon to hear appeals in respect of a myriad of industrial matters, including resolving whether particular matters are industrial matters.  Even when determining a claim of harsh, oppressive or unfair dismissal referred under s 29(1)(b)(i) of the Act, the Commission and the Full Bench on appeal (pursuant to s 49(5)(b) and s 49(6) of the Act) is not required to order reinstatement but can order re-employment in another position or compensation for loss and injury (s 23A(4) and s 23A(6)).  Pursuant to s 49(5)(b) and s 49(6) of the Act the Full Bench can vary a decision of the Commission and if so varies the decision shall be in the terms which could have been awarded by the Commission that gave the decision.

53      Thus, it is apparent that as in 1989 when Arpad Security Agency was decided by the Full Bench, the relevant provisions of the Act remain on all fours with the legislation considered by the High Court in Re Coldham.

54      I do not, however, agree that the reasoning of Sharkey P in Arpad Security Agency is without error.  I do not agree with the observation that the Commission as a court of record has power to govern its own procedure in any event and extend time.  The Commission is not a superior court of record and as such it has no inherent jurisdiction.  Its jurisdiction is limited to that expressly provided in the Act:  Robe River Iron Associates v Federated Engine Drivers’ and Firemens’ Union of Workers of Western Australia (1986) 67 WAIG 315; Australian Glass Manufacturing Co Pty Ltd v Transport Workers' Union of Australia, Industrial Union of Workers, Western Australian Branch (1992) 72 WAIG 1499; see also the recent observations of the Full Bench in The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2014] WAIRC 00534; (2014) 94 WAIG 800 [9] - [10].

55      Whilst I do not agree that the Commission has any inherent or implied power to extend time, the observation of Sharkey P in Arpad Security Agency was obiter, as it was found in that case that the Full Bench was expressly authorised to extend time to institute an appeal by operation of s 27(1)(n) of the Act.

56      I also do not agree that the characterisation of the amended and now repealed s 29(2) of the Act considered in Richardson and Aurion Gold can be applied to s 49(3) and s 27(1)(n) of the Act.  Firstly, as McLure J pointed out in Aurion Gold the language in the former s 29(2) was peremptory and prohibitive and the legislature clearly intended employees to be treated differently from other applicants [23].

57      Secondly, the former s 29(2) of the Act was enacted subsequent to s 27(1)(n).  In Richardson the former s 29(2) had come into effect one day prior to the termination of Ms Richardson's employment.  However, the same cannot be said about s 49(3) and s 27(1)(n) of the Act.  Section 27(1)(n) stands unamended since the Act was passed in 1989 and s 49(3) has not been amended in a way that is material to this appeal.  The only amendment made to s 49(3) was to repeal a specific right of appeal that was vested in the Attorney General.

58      Section 49(2) of the Act creates a right of appeal; thus its effect is substantive and jurisdictional.  Whilst s 49(2) creates the right by its terms, the way in which the right is to be exercised is in the manner prescribed.  There are two provisions that prescribe the manner in which a right of appeal may be instituted.  The first provision is s 49(3) which prescribes not only the time limit for instituting an appeal, but also provides standing to parties and interveners to bring an appeal.  When s 49(3) and s 27(1)(n) are read together with principal object s 6(c), s 22B, s 26(1)(a) and s 26(1)(b) of the Act, it is clear that the time limit in s 49(3) is procedural and only bars the remedy (the right to institute an appeal) unless the Full Bench exercises its discretion to extend time.

59      For these reasons, I am of the opinion that Arpad Security Agency should not be overruled.  I am also of the opinion that the Full Bench should make an order to extend time to United Voice WA to institute an appeal against the decision of the Commission in CR 51 of 2012.

The Commissioner's reasons for decision

60      The Commissioner firstly set out the evidence given by the witnesses.  She recorded Ms Spence's evidence as follows:

(a) Ms Spence was first employed at Burbridge School on 28 April 1998 as a swimming teacher whilst Ms Margaret Owen who substantively held that position was on long service leave.

(b) After Ms Owen returned to the swimming teacher's job, Ms Spence went onto the relief list as the swimming teacher and as an education assistant.

(c) In 2005, Ms Owen went on further leave and Ms Spence was approached by the principal at Koondoola Primary School, a satellite class of Burbridge School, to take on the role of swimming teacher commencing in term 2, which she accepted.

(d) In October 2006, Ms Spence was being paid as an untrained swimming teacher under the relevant teachers’ award/agreement.  In 2007 she had a performance management review meeting with the deputy principal who provided her with a letter stating that she was an amazing school team member and that she would stay at the school as the swimming teacher until the end of the year.

61      The Commissioner recorded in her reasons for decision evidence given by other witnesses who gave evidence in support of the claim made by United Voice WA on behalf of Ms Spence.  Their evidence is not material to this appeal.

62      Whilst it is not clear from the reasons for decision, it appears that from 2007 until 2013 Ms Spence continued to work as a swimming teacher at Burbridge School, but was paid as an education assistant.

63      In her reasons for decision, the Commissioner recited the relevant closing submissions made by United Voice WA as follows:

(a) The work, the abilities and the responsibilities required by Ms Spence or alternatively, the conditions under which the work came to be performed by Ms Spence at Burbridge School between 2007 and 2013 (this being the ‘relevant period’) is what the Commission is being asked to consider.

(b) It is relevant to consider the instruments under which Ms Spence is employed by the Director General as an education assistant (including the level of pay she received) and having regard for the circumstances and practices undertaken by the organisation in which Ms Spence is employed.

(c) Consistent with s 6 - Objects of the Act, in particular s 6(ca), to provide a system of fair wages and conditions of employment, the Director General is required to follow this object.  The evidence led on behalf of United Voice WA ought to be sufficient to satisfy the Commission that the Director General has failed to comply with establishing a system of fair wages and conditions of employment as is required under s 6 of the Act.

(d) The Commission is able to exercise its discretion and grant the relief sought and, if necessary, issue any incidental orders that may be required to give proper effect to what is being sought.

64      The Commissioner set out the evidence which United Voice WA says supports the claim made on behalf of Ms Spence.  In particular, she referred to the submission that there was uncontradicted evidence that when Ms Owen retired in 2007, she was replaced by Ms Spence as the swimming teacher at Burbridge School and 'picked up' all of the relevant duties that Ms Owen had participated in as a swimming teacher at the school.

65      The Commissioner then recited the legal submissions made by United Voice WA as follows:

(a) Having regard to the objects of the Act the Commission ought to exercise its discretion and grant relief as sought in accordance with s 26(1)(a) of the Act.

(b) The Commission should have regard to the State Wage Case Principles ([2012] WAIRC 00359; (2012) 92 WAIG 568), in particular to Principle 3.1.4, the relevant consideration being with respect to work value changes.  Regard should also be had to Principle 7.1 which states that ‘application may be made for a wage increase under this Principle based in changes in work value'.

(c) It is not the view of United Voice WA that if the Commission were to issue orders it would do so as the enforcer (the submissions of the Director General).  The orders sought would provide a fair level of pay on the basis of the work value of the duties performed.

66      The Commissioner then recorded the relief sought for Ms Spence which was as set out in the schedule of the matters referred for hearing and determination and is recorded at [2] of these reasons for decision.

67      The Commissioner then set out the evidence and contentions put on behalf of the Director General as follows:

(a) The Director General says Ms Spence is, and at all times has been, employed pursuant to a contract of employment under which she is an education assistant and not a teacher.  The applicant [sic] seeks limited registration as an untrained teacher from the Teacher Registration Board.  An untrained teacher is found in the School Education Act Employees' (Teachers and Administrators) General Agreement 2011 (the 2011 General Agreement) (in particular cl 7).  The Director General considers such a person to be a teacher who does not have a training qualification as determined by the Director General.  The payment of such a qualification is 'picked up' in Schedule A Salaries and is similar in the Teachers (Public Sector Primary and Secondary Education) Award 1993 (the 1993 Teachers Public Sector Award) at cl 5 [sic].

(b) Whilst the Director General concedes there is an untrained teacher position it makes it clear it is a teaching position within the Department of Education.  There seems to be at times a faint suggestion from Ms Spence that what the witness does is similar to teaching duties.  The fact that Ms Spence operates autonomously in the Director General’s view is not close to what is required in the scope of a teacher’s duties.

(c) Ms Spence has made two applications in the past for limited registration as an untrained teacher and was supported by the then principal of Burbridge School.  Each of those applications was unsuccessful.

(d) The applicant [sic] is seeking at this stage to make a further application as she did so in 2007 to become an untrained teacher with limited authority to teach from the then Western Australian College of Teaching.

(e) Full-time equivalent teaching positions are highly sought after in public schools and in circumstances where full-time equivalent positions are available they are sought after on behalf of a fully trained teacher who can go in front of a class of students and teach them as well as being available to go into a swimming pool.

(f) The Director General is not seeking to in any way devalue the work of Ms Spence.  At all times the Director General was very impressed with the work Ms Spence had undertaken.

68      The Commissioner set out in her reasons for decision the evidence given by each of the witnesses on behalf of the Director General.  This evidence is not relevant to the issues raised in this appeal.

69      The Commissioner had regard to a number of submissions made on behalf of the Director General in closing submissions.  These submissions went to the merit of the claim made by United Voice WA that Ms Spence carried out the duties and functions of an untrained teacher.

70      The Commissioner then recorded the following material paragraphs set out in paragraphs 13 and 14 of the Director General's written closing submissions filed in the Commission on 10 December 2013.  These submissions were as follows:

Whether or not Ms Spence could be said to have discharged some of the functions under section 64 School Education Act 1999 is irrelevant to this matter. The applicant seeks a declaration that Ms Spence's duties and responsibilities were teaching functions. Even if some of what Ms Spence did might correspond to section 64 the material question is whether Ms Spence, once her functions are reviewed and understood, was like a teacher or an education assistant.  On that question there can be no dispute that Ms Spence was an education assistant and not like a teacher at all.

Additionally, although the evidence in any event would not support such a conclusion, a finding that Ms Spence was in fact performing teaching duties and should have been paid as an untrained teacher would be inappropriate for legal reasons as it would involve a finding that the respondent was in breach of the General Agreement and such a finding is within the exclusive jurisdiction of the industrial magistrate's court pursuant to section 83(3) Industrial Relations Act 1979.

71      The Commissioner then made the following findings:

(a) Before the Commission can consider making any statutory findings consideration needs to be given to the jurisdictional issue raised by the Director General in paragraphs 13 and 14 of her closing submissions.

(b) In response to the jurisdictional submission raised by the Director General, United Voice WA submits that the dispute is properly before the Commission for determination pursuant to Principle 7.1:  United Voice WA's closing submissions, paragraph 8.

(c) The principles from the decision of the Industrial Appeal Court in Springdale Comfort Pty Ltd v Building Trades Association of Unions of Western Australia (Association of Workers) (1986) 67 WAIG 325, 330 reflect the onus of establishing that the Commission has jurisdiction, lies with the party making an application before the Commission.  Once questions or issues of jurisdiction have been raised the jurisdictional issue is to be heard first and failure to do so is in breach of the Act.  This decision is no barrier to hearing the issues of jurisdiction and merit at the same time.  What the decision does establish is that the jurisdictional aspect must be determined at first instance.

(d) Whenever a point of jurisdiction is raised, albeit late, it is a matter that must be considered prior to any other matter being reflected upon.  The work, skills and responsibilities being undertaken by Ms Spence being submitted by United Voice WA as teaching duties in her role as swimming teacher at Burbridge School are:

- between 1998 and 2005; from 2006, after Ms Owen went on prolonged leave, then after she (Ms Owen) retired in 2007 Ms Spence’s duties were the same as those carried out by Ms Owen at the School;

- for a significant period prior to the Commission hearing the application the pool at the School was closed for renovations.  During this time Ms Spence undertook standard education assistant duties in the classroom; in large part unrelated to the matter currently before the Commission.

(e) The Commission finds that the pool was closed for renovations mid-2012 and from six weeks into term 4 in that year Ms Spence went back to her classroom duties.  The relevant period being considered therefore in the matter before the Commission is the period from 2007 through to term 4 in 2012.

(f) The question the Commission has to consider is whether the Director General is in breach of cl 38 of the 2011 General Agreement.  The answer to such a question is not a matter within the jurisdiction of the Commission but is solely contained within the jurisdiction of the Magistrate's Court pursuant to s 83(3) of the Act.  Such principles are reflected in the decision of the Full Bench in Crewe and Sons Pty Ltd v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1989) 69 WAIG 2623.

This is not an interpretative matter.  In order for the Commission to issue a declaration as required by United Voice WA that the duties and responsibilities of Ms Spence are teaching functions, the Commission would be required to make a finding that during the relevant period being considered Ms Spence had in fact performed teaching duties and therefore should be paid as an untrained teacher.  It is the view of the Commission that to do so would be inappropriate as it would involve a conclusion being reached by the Commission that the Director General had, during the relevant period, breached the provisions of the 2011 General Agreement.  To do so is outside the arbitral powers of a single Commissioner and within the judicial decision [sic] of the Industrial Magistrate pursuant to s 83(3) of the Act.

(g) The Commission makes no statutory consideration in relation to the evidence submitted.  The Commission concludes that it is appropriate in the circumstances to dismiss the application.

The grounds of appeal

72      The grounds of appeal are as follows:

1. The learned Commissioner erred in law and/or fact in dismissing application CR 51 of 2012, with an Order on the 18 July 2014 [2014 WAIRC 00662] on the grounds of a finding purporting that the Commission lacked jurisdiction to deal with the matter.

Particulars

The exercise of the Commission's statutory discretion miscarried in that the learned Commissioner failed to or misdirected herself in:

a. correctly apply [sic] the proper principles defining the powers of the Commission to deal with the resolution of an industrial matter pursuant to section 44(9) of the Industrial Relations Act 1979, as per the relevant binding authorities;

b. properly characterising the matter as one whereby the discretionary powers of the Commission are sought to decide what level of fair and just pay ought to apply on the basis of the inherent work-value of the duties and responsibilities performed by Ms Wendy Spence, without enforcing such rights; as opposed to the ascertainment of existing Award or contract-of-employment rights;

c. nothing in the relief sought by the applicant indicates that the applicant was seeking the enforcement of an existing right;

d. Not considering relevant matters and, alternatively, considering irrelevant matters.

2. The Commission erred in law and/or fact in failing to deal with the purported jurisdictional point in accordance with proper, due and well-settled processes; thereby denying the applicant natural justice and procedural fairness in that the applicant was not afforded a fair and reasonable opportunity to make proper submissions, as none were sought by the Commissioner on the alleged jurisdictional point.

Particulars

The exercise of the Commission's statutory discretion miscarried in that the learned Commissioner failed to or misdirected herself in that:

a. On the material before her, it was not open to the learned Commissioner to make a finding that the Commission lacked jurisdiction to deal with the application;

b. Even if the learned Commissioner was correct in understanding the 'passing' comment made by the respondent at the end of their closing submissions as having been a purported 'challenge' to the Commission's jurisdiction to deal with the matter at that late stage - a fact which we do not concede, as no substantive submissions were adduced by the respondent in support of their alleged 'comment' - the learned Commissioner failed to:

I. Notify the applicant during the hearing proceedings of her statutory discretion having been challenged and, consequently, her legal encumbrance of having to deal with the jurisdictional challenge;

II. Provide the applicant with a fair and reasonable opportunity to make a proper comprehensive submission against the purported jurisdictional challenge by the respondent, as no submissions were sought by the learned Commissioner on the point.

3. The Commission erred in law and/or fact in finding that allegedly '… the task the Commission has to consider is whether the respondent is in breach of cl 38 of the School Education Act Employees' (Teachers and Administrators) General Agreement 2011 (the 'GA') [Reasons for Decision (RD): 72]

Particulars

The learned Commissioner erred or misdirected herself in that:

a. No submission was ever made by the applicant alleging that the respondent had 'breached' clause 38 of the GA, as Ms Spence was employed on the relevant applicable employment instruments as an Education Assistant by the respondent; as opposed to the GA. [RD: 1]

b. Conversely, the applicant's submissions sought to differentiate the roles and duties of Ms Spence as a 'Swimming Teacher in an Education Support Centre', on the one hand, from those of the 'Swimming Instructors' already paid in accordance with the GA under cl. 38, so as to avoid undue confusion. [RD: 2(l)(b)]

c. No proper findings or no findings at all were made by the Commission on the substantive evidence submitted at the hearing. [RD: 76]

73      United Voice WA seeks an order that the operation of the decision in CR 51 of 2012 be suspended and the case be remitted to the Commission for further hearing and determination in accordance with the decision of the Full Bench and in accordance with the law.

Submissions – Exclusive jurisdiction of the Industrial Magistrate's Court

74      It is pointed out on behalf of the Director General that in cognizance of the exclusive jurisdiction of the Industrial Magistrate's Court under s 83 of the Act, the Commission has long held that if the 'essential' nature of the proceedings before it is for enforcement of an industrial instrument then the Commission may not exercise its jurisdiction in relation to the matter:  Crewe and Sons (2626).

75      It is also pointed out on behalf of the Director General that the cases on point were decided prior to 1992 when the Industrial Magistrate's Court's powers of 'enforcement' were limited.  In 2002, by s 155 of the Labour Relations Reform Act 2002 (Act No 20 of 2002) (WA), a new s 83 was inserted in the Act.  This s 83 included s 83(5) and s 83(8) which provide as follows:

(5) If a contravention or failure to comply with a provision of an instrument to which this section applies is proved against a person as mentioned in subsection (4) the industrial magistrate's court may, in addition to imposing a penalty under that subsection, make an order against the person for the purpose of preventing any further contravention or failure to comply with the provision.

(8) A person shall comply with an order made against him or her under subsection (5).

Penalty: $5 000 and a daily penalty of $500.

76      The Director General argues that s 83(5) and s 83(8) of the Act give the Industrial Magistrate's Court true 'enforcement' powers.

77      In J-Corp Pty Ltd v The Australian Builders’ Labourers’ Federated Union of Workers, Western Australian Branch (1993) 73 WAIG 1185 the Full Bench made the following point in relation to s 83 as it stood at that time (1188):

[N]o 'enforcement' occurs under s.83 ..., except insofar as there can be payments of amounts 'underpaid' in breach of an award under s.83. But in the sense that enforcement means that an order can be made requiring a person to comply with his/her obligations under the award, no such order can be made. In that sense then, there is no power to 'enforce', in the case of s.83, any order or any award.

78      It is also submitted that whilst Crewe and Sons correctly directs attention to the essential nature of the proceedings before the Commission, in considering whether or not the proceedings were appropriately characterised as proceedings for enforcement, the decided cases dealt with a different s 83 and a s 83 which made it easier to say, in relation to the proceedings before the Commission, that the proceedings were not, by their essential nature, proceedings for enforcement.

79      It is said that prior to 2002 that so long as the proceedings did not actually seek the payment of money said to be owed under an industrial instrument, it was open to the Commission to find that the proceedings were not proceedings for enforcement, because the Industrial Magistrate's Court, save in relation to the payment of money owed under an industrial instrument, had no powers of enforcement.

80      Counsel on behalf of the Director General also made a submission that is critical of the decision of the Full Bench in St Michael’s School v The Independent Schools Salaried Officers’ Association of Western Australia, Industrial Union of Workers [2000] WAIRC 00002; (2000) 80 WAIG 2839.  In that matter the Full Bench applied the reasoning in Crewe and Sons.  In St Michael’s School the parties were in dispute over a classification level within the Independent Schools Administrative and Technical Officers Award 1993 assigned to an employee for a period of time of over four years, given the nature of duties undertaken in the performance of the employee's employment at St Michael's School.  The matter was referred to the Commission for hearing and determination under s 44(9) of the Act.  The union in that matter sought an order that the employee be classified at level 4.  The Commission at first instance held that the order sought by the union could not be said to be an enforcement of the award in the manner cited in Crewe and Sons and explained in J-Corp.  The Full Bench unanimously found that the Commissioner correctly found that the order sought would not require St Michael's School to comply with its obligations under the award; nor was such an order sought.  They also found the dispute concerned what classification should apply to the duties performed by the employee and the order would not, of itself, require the employer to pay her at that rate.  In particular, the order would require that she be classified for the purposes of her employment under the award as a level 4 employee.  The dispute was as to whether that was her classification [41].

81      Counsel for the Director General made a submission that the Full Bench in St Michael’s School was wrong in finding that there was no attempt to enforce the award.  It is argued that the Full Bench admitted to an intrusion upon the exclusive jurisdiction of the Industrial Magistrate's Court.  This is because the Full Bench specifically contemplated that following an order made by the Commission to reclassify the employee, if she was not paid what a level 4 employee should be paid under the award in question in that matter the award would be enforceable in the Industrial Magistrate's Court pursuant to s 83 of the Act.

82      In any event, the Director General contends that the situation since 2002 has been different and in deciding whether a matter is within the Commission's jurisdiction or should be properly before the Industrial Magistrate's Court, the Commission now needs to be cognizant of the wide enforcement powers of the Industrial Magistrate's Court in s 83(5) and s 83(8) of the Act.

83      In this matter, the 2011 General Agreement provides for the position of 'untrained teacher' and provides a pay scale for remuneration for the position.  The Director General says the essence of the case put by United Voice WA at first instance is that its member, Ms Spence, had been performing the duties of an 'untrained teacher', as that term appears in the 2011 General Agreement, for a long time and that accordingly the Commission should order the Director General to do what it could to have Ms Spence formally employed and paid as an untrained teacher under the 2011 General Agreement.  Further, that it was unfair that Ms Spence had not been made an untrained teacher.  In particular, she has not been employed under or paid in accordance with the 2011 General Agreement and the way this conduct is to stop is that the Commission must make a declaration that Ms Spence is in fact a teacher and should order the Department of Education to nominate her to the Teacher Registration Board as an untrained teacher.

84      It is said the essential nature of the proceedings is set out in paragraphs (5), (9), (10), (14), (17) and (18) of the notice of application.  These paragraphs provide as follows:

5. The Applicant claims that Ms Spence is incorrectly classified as an Education Assistant and that she should be classified and paid as an Untrained Teacher pursuant to the School Education Act Employees' (Teachers and Administrators) General Agreement 2011 (the Teacher Agreement).

9. In Term 3, 2005, Ms Spence was engaged as an Untrained Swimming Teacher at Burbridge School for 0.8FTE to cover the absence of the substantive Untrained Swimming Teacher.

10. Since 2005, Ms Spence has continued to work, between 0.8FTE and 1FTE, as an Untrained Swimming Teacher at Burbridge School, notwithstanding the fact that she is classified and remunerated as a Level 3 Education Assistant.

14. Ms Spence is employed and paid as a Level 3 Education Assistant pursuant to the Education Assistant Agreement, despite the fact that she performs no duties of an Education Assistant and spends 100% of her work time performing the duties of a swimming teacher.

17. The rate of pay for a [sic] Untrained Teacher under the Teacher Agreement is between $44,481.00 and $69,907.00 per annum depending on years of service.

18. The rate of pay for a Level 3.3, Education Assistant pursuant to the Education Assistant Agreement is $25.91 per hour, which equates to $43,787.90 per annum.

85      Thus, it is argued that the matters pleaded in these paragraphs show that what Ms Spence is complaining about is that she had been paid less than she should be and she wants the Commission to assist her to do something about that.  Thus, the true nature of the application made by United Voice WA and the case at first instance is that, given Ms Spence has been carrying out the duties of an 'untrained teacher' under the 2011 General Agreement for so long, it would be unfair to not order the Director General to now do what it could to formally appoint her, and pay her the rates of pay specified for an 'untrained teacher' under the 2011 General Agreement.

86      It is also argued that the case is not one of 'reclassification', in the sense that term is used in the Commission.  A 'reclassification' application is one where the Commission is asked to determine whether, due to enhanced work value, a position should be reclassified.  United Voice WA sought orders that were particular to Ms Spence and her employment with the Director General.

87      Thus, the matter, properly characterised, was one for the enforcement of the 2011 General Agreement in relation to Ms Spence as United Voice WA sought a finding that the Director General had been acting in breach of the 2011 General Agreement in relation to Ms Spence.  Therefore it can be said that United Voice WA sought an order 'for the purpose of preventing any further contravention or failure to comply with' the 2011 General Agreement, to use the language of or within the meaning of s 83(5) of the Act.  That is, United Voice WA sought an order that the Director General support Ms Spence's registration as an 'untrained teacher' with the 'purpose' of 'preventing further contravention' of the 2011 General Agreement, which would be the result of the Director General having Ms Spence perform the work of an untrained teacher without paying her as such.  Such matters are the exclusive reserve of the Industrial Magistrate's Court.

88      It is also said that it is no answer to the principle in Crewe and Sons to say that no order for the payment of money or no specific order for enforcement is sought in the proceedings before the Commission.  The principle in Crewe and Sons cannot be so easily avoided.  The Commission is entitled to, and must, determine the 'essential' nature of the proceedings before it and having done this must decide whether those proceedings are appropriately before it or are within the exclusive jurisdiction of the Industrial Magistrate's Court.

89      Where an employee has been performing duties under a particular industrial instrument, and not paid for those duties, and a remedy is sought to be granted against the employer to have the employee formally appointed under, and paid pursuant to, that industrial instrument this is essentially a matter of enforcement which can, and accordingly should, be dealt with by the Industrial Magistrate's Court.  If the Commission gives full effect to s 83(3) of the Act it should not, in cases such as the present one, embark upon considering findings that could underpin enforcement proceedings in the Industrial Magistrate's Court and the Commissioner at first instance in this matter was correct to refrain from doing so.

Conclusion – Exclusive jurisdiction of the Industrial Magistrate's Court

90      The current operative provisions of s 83 of the Act provides:

(1) Subject to this Act, where a person contravenes or fails to comply with a provision of an instrument to which this section applies any of the following may apply in the prescribed manner to an industrial magistrate’s court for the enforcement of the provision —

(a) the Registrar or a deputy registrar;

(b) an industrial inspector;

(c) in the case of an award or industrial agreement, any organisation or association named as a party to it;

(d) in the case of an award, industrial agreement or order, an employer bound by it;

(e) any person on his or her own behalf who is a party to the instrument or to whom it applies;

(f) if an employee under an employer‑employee agreement is a represented person, a representative acting on his or her behalf.

(2) In this section —

instrument to which this section applies means —

(a) an award; and

(b) an industrial agreement; and

(c) an employer‑employee agreement; and

(d) an order made by the Commission, other than an order made under section 23A, 32, 44(6) or 66.

(3) An application for the enforcement of an instrument to which this section applies shall not be made otherwise than under subsection (1).

(4) On the hearing of an application under subsection (1) the industrial magistrate’s court may, by order —

(a) if the contravention or failure to comply is proved —

(i) issue a caution; or

(ii) impose such penalty as the industrial magistrate’s court thinks just but not exceeding $2 000 in the case of an employer, organisation or association and $500 in any other case;

or

(b) dismiss the application.

(5) If a contravention or failure to comply with a provision of an instrument to which this section applies is proved against a person as mentioned in subsection (4) the industrial magistrate’s court may, in addition to imposing a penalty under that subsection, make an order against the person for the purpose of preventing any further contravention or failure to comply with the provision.

(6) An order under subsection (5) —

(a) may be made subject to any terms and conditions the court thinks appropriate; and

(b) may be revoked at any time.

(7) An interim order may be made under subsection (5) pending final determination of an application under subsection (1).

(8) A person shall comply with an order made against him or her under subsection (5).

Penalty: $5 000 and a daily penalty of $500.

91      The jurisdiction conferred under s 83(5), when read with the whole of s 83, is that the power of the Industrial Magistrate's Court to make an order against a person is injunctive in nature and consequential on a finding of a breach of an award, industrial agreement or order or consequential pending the final determination of proceedings for a breach of such instruments.  The jurisdiction to make an order arises:

(a) following an order being made by an Industrial Magistrate that a contravention or failure to comply with a provision of an award, industrial agreement or order; or

(b) pending the final determination of whether the person in question has contravened or failed to comply with a provision of an award, industrial agreement or order, an interim order can be made.

92      However, any order made against the person under s 83(5) must be for the purpose of preventing any further contravention or failure to comply with the provisions of the award, industrial agreement or order.

93      At the heart of the submission made on behalf of the Director General is a submission that the Full Bench, in determining whether proceedings before the Commission are proceedings that seek the enforcement of an award, must not confine its consideration of the matter to the relief sought, but must look at all of the relevant facts and matters upon which findings of fact and law are sought to be made in support of the remedy.  I do not agree that this approach is correct.

94      In my respectful opinion, the determination of this issue starts from a consideration of the nature of the relief sought and whether the Commission is called upon to exercise arbitral power.

95      The difference between an exercise of judicial power and arbitral power was explained by Isaacs and Rich JJ in The Waterside Workers' Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434, 463 as:

[T]he judicial power is concerned with the ascertainment, declaration and enforcement of the rights and liabilities of the parties as they exist, or are deemed to exist, at the moment the proceedings are instituted; whereas the function of the arbitral power in relation to industrial disputes is to ascertain and declare, but not enforce, what in the opinion of the arbitrator ought to be the respective rights and liabilities of the parties in relation to each other.

96      In Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656, 666 the High Court put the distinction more simply:

The purpose of the Commission's inquiry is to determine whether rights and obligations should be created.  The purpose of a court's inquiry and determination is to decide whether a pre-existing legal obligation has been breached, and if so, what penalty should attach to the breach.

97      Accordingly a judicial function arises when the resolution sought is ascertainment of legal rights and obligations as opposed to the creation of new rights and obligations.  In reclassification proceedings the Commission usually is called upon to exercise arbitral power; that is to create a bundle of new rights and obligations.  The Industrial Magistrate's Court acting under s 83(1) and s 83(4) of the Act is conferred with judicial power to determine whether an award, industrial agreement or order has been complied with.

98      In Crewe and Sons the Full Bench quashed an order by the Commission that an employer pay three of its employees annual leave loading prescribed by the Metal Trades (General) Award No 13 of 1965.  The order was made under s 44 of the Act.  In a unanimous decision of the Full Bench they observed that:

(a) it was established in Mt Newman Mining Co Pty Ltd v Transport Workers Union of Australia, Industrial Union of Workers, Western Australian Branch (1984) 64 WAIG 1075 that the Commission does not have any jurisdiction to hear and determine matters that are essentially seeking enforcement or recovery of wages under an award;

(b) the power and duty to enforce orders and awards is conferred separately in the Act by separate express provisions upon the Full Bench (s 84A) and the Industrial Magistrate (s 83) (2626).

99      The Full Bench in Crewe and Sons referred to the decision of the High Court in Re Cram; Ex parte The Newcastle Wallsend Coal Co Pty Ltd [1987] HCA 29; (1987) 163 CLR 140 in which the High Court held that the making of a binding declaration or right is the exercise of judicial power.  The Full Bench then summarised the principles enunciated by Mason CJ, Brennan, Deane, Dawson and Toohey JJ in Re Cram as follows (2627):

(1) A claim for payment of wages due and payable by an employer to an employee is a claim for the enforcement of an existing legal right.

(2) A claim for the enforcement of a provision in an award for the payment of wages to an employee is also a claim for the enforcement of an existing legal right.

(3) Claims for the enforcement of existing legal rights necessarily invoke the exercise of judicial power.

(4) The Court held that there was no jurisdiction in the Board to determine or enforce a legal right to payment of wages on the part of employees in respect of a past period during which they had been stood down or refused work or to enforce the provisions of an award regulating the right to payment of wages for such a period.

(5) Thus, the authority was denied the power of judicial determination which included, to use the words of Kitto J. in Aberdare Collieries Case (op. cit.) 'the giving of decisions in the nature of adjudications upon disputes as to rights or obligations arising from the operation of the law upon past events or conduct'.

(6) The making of a binding declaration of right is an instance of the exercise of judicial power.

It stands outside the arbitral function.

But there is no substance in the suggestion that an industrial tribunal cannot interpret laws, awards and other legal instruments. A tribunal could not discharge its arbitral functions if it were unable to form an opinion on a matter of interpretation. The formation of views and opinions on matters of interpretation in arbitral proceedings does not of itself amount to a usurpation of judicial power (see Cessnock Collieries Case (op. cit.) and Australian Coal and Shale Employees' Federation Case (op. cit.) at page 174 and R. v. Gough; ex parte Key Meats Pty Ltd (1982) 148 CLR 582 at 596-597) (our underlining).

[Put in the context of the Industrial Relations Act (W.A.) it would not necessarily amount to an intrusion on the section 46 power].

(7) Indeed, a tribunal may find it necessary to form an opinion as to the existing legal rights of the parties as a step in arriving at the ultimate conclusions on which the tribunal bases the making of an award intended to regulate the future rights of the parties [see Aberdare Collieries Case (op. cit.)]. Of course, the formation of such an opinion does not bind the parties and cannot operate as a binding declaration of rights.

(8) Despite the reference by Kitto J. in Aberdare Collieries Case (op. cit.) to 'the distinction between a power of arbitral decision in respect of the future and a power of judicial determination of existing rights and obligations', the arbitral function includes the determination of a dispute relating to past transactions, events and conduct. Commercial arbitration often involves the determination of such a dispute and so does industrial arbitration.

100   Thus, it is clear that the Commission when exercising an arbitral function is not prohibited from interpreting industrial instruments.  It necessarily follows that whilst a Commissioner may not make a binding declaration of the rights and obligations of parties under an industrial instrument, it is open to the Commission to make a binding determination of future rights and obligations.

101   In J-Corp an application was made under s 44 of the Act over the alleged refusal of right of entry to two union officials by J-Corp Pty Ltd.  The parties were bound by the Building Trades (Construction) Award 1987 (the Construction Award) which contained a right of entry clause.  The matter was referred for hearing and determination and after hearing from the parties an order was made requiring J-Corp Pty Ltd to produce and provide copies of particular documents relating to the terms of contracts with sub-contractors and the names of apprentices employed by sub-contractors to the union.  On appeal, J-Corp Pty Ltd argued the true purpose of the application was to enforce the right of entry conferred upon J-Corp Pty Ltd by the Construction Award.  The Full Bench rejected the argument.  It found (1188 - 1189):

S.83 of the Act now confers jurisdiction upon the Industrial Magistrate's Court in relation to cases where a person fails to comply with any provision of an award, industrial agreement, or order, other than one made under s.44(6), s.32 or s.66 of the Act. However, the remedies are restricted to pecuniary penalties, costs and to the power to order the employer to pay to an employee any amount 'underpaid' under an award.

As the Full Bench observed in Registrar v. CSA 69 WAIG 2937 at 2938, proceedings under s.84A of the Act, which are referred to as 'enforcement proceedings', are the subject of something of a misnomer. In fact, no 'enforcement' occurs under s.83 or s.84A, except insofar as there can be payments of amounts 'underpaid' in breach of an award under s.83. But in the sense that enforcement means that an order can be made requiring a person to comply with his/her obligations under the award, no such order can be made. In that sense then, there is no power to 'enforce', in the case of s.83, any order or any award. There is no power to order a right of entry either in this particular case. The powers, too, are mainly to impose a penalty for non-compliance with the award if the matter comes to the Industrial Magistrate, and a similar observation can be made that 'enforcement' is a misnomer for the proceedings.

Nothing in s.44(9) of the Act says that what it prescribes must be purely an arbitral decision. S.44(9) reads as follows:-

'Where at the conclusion of a conference held in accordance with this section any question, dispute, or disagreement in relation to an industrial matter has not been settled by agreement between all of the parties, the Commission may hear and determine that question, dispute, or disagreement and may make an order binding only the parties in relation to whom the matter has not been so settled.'

In the absence of the dichotomy between judicial and arbitral powers which exist because of the Constitution in the Federal area, there is no reason why decisions, which are to some extent judicial, cannot be made under s.44, provided that the decision made resolves the question or dispute or disagreement before the Commission. S.44(9) supports that view in its words, as does s.44(12). Of course, they cannot be decisions which purport to enforce an order or award in terms of s.83 or s.84A of the Act, or which are the subject of other specific provisions of the Act (eg s.66 of the Act).

Insofar as there is no power in the Industrial Magistrate to order re-entry, as was sought here, and insofar as the Commission is empowered under s.44(6) to make orders of a wide ranging nature for the reasons set out therein, and insofar as the Commission is empowered to deal with questions in dispute, etc, under s.44(9), and, in fact, to hear and determine a question, dispute or disagreement, there is no reason why it should not make orders in relation to the right of entry under an award when no provision exists for the making of any order remedying the situation in the Industrial Magistrate. That was the point made by the Full Bench in Springdale Comfort Pty Ltd v. BTA and Others (op cit) to which we have just referred.

In short, these proceedings were not enforcement proceedings. They were proceedings directed to providing a remedy which did not exist under s.83 of the Act, namely of permitting or authorising entry to the site. In so holding, we apply the decision of the Full Bench in Springdale Comfort Pty Ltd v. BTA and Others (op cit), which in substance is not distinguishable. However, even were there no such decision, it is quite clear, for the reasons we have expressed, that these were not enforcement proceedings.

There was therefore jurisdiction in the Commission to make the orders which it made, and we apply Springdale Comfort Pty Ltd v. BTA and Others (op cit) (FB) at page 468 per O'Dea P, with whom Martin and Negus CC agreed.

102   If the facts found in J-Corp were applied to proceedings brought prior to the amendments made to s 83 in 2002 in the Industrial Magistrate's Court for breach of the Construction Award, the Industrial Magistrate could only impose a penalty on J-Corp Pty Ltd if it were found that the company had breached the Construction Award.  The Industrial Magistrate could not, however, provide the remedy provided by the Commission at first instance; that is it could not order production of the documents the union officials were seeking.

103   In St Michael’s School the union sought an order that one of its members be classified at level 4 within the classification of the Independent Schools Administrative and Technical Officers Award.  The Full Bench identified the dispute as a dispute about what classification should apply to the duties of the employee.  At [41] - [44] the Full Bench found:

The respondent made it clear that the dispute concerned what classification should apply to the duties performed by Mrs Murray. The order would not, of itself, require the employer to pay her at that rate. The order would require that she be classified for the purposes of her employment under the award as a Level 4 employee. The dispute was as to whether that is her classification.

Its resolution required a finding of fact as to her duties and the application of the terms of the award (perhaps involving its interpretation) to those duties, to determine whether her classification should be as a Level 4, not a Level 3, employee, and whether the order sought should therefore issue.

There was clearly no attempt to enforce an order to pay the monies or indeed to enforce the award. The matter involved a determination of what classification under the award applied to an employee. The order, as the Commissioner correctly observed, did not seek to compel the employer to do anything. Clearly, if the respondent was successful in obtaining the order and Mrs Murray was not paid what a Level 4 employee should be paid under the award, then the award would be enforceable in the Industrial Magistrate’s Court, pursuant to s.83 of the Act.

Quite plainly, therefore, the order sought was not an order for enforcement because it does not seek the enforcement of existing rights, it did not allege a breach of an award, it was not a claim for a liquidated amount said to be due under the award and to be determined according to existing legal rights. The nature of the order sought was a decision as to the future rights, conduct and obligations of the parties and of an employee and that is the essence of arbitration. Further, which is the essence of industrial arbitration, the question ultimately was what was right and fair, particularly to the employee (see Crewe and Sons v AMWSU (FB)(op cit) at page 2627 and Re Cram and Others; Ex parte Newcastle Wallsend Coal Co Pty Ltd 163 CLR 140, see also Health Services Union of Australia v Dorevitch Pathology (unreported) (No C32827 of 1999) delivered 8 February 2000 (AIRC)).

104   The Full Bench in St Michael’s School characterised what was within the jurisdiction of the Commission, as the remedy sought by the applicant at first instance.  The Director General in this matter is critical of this approach.  The effect of the Director General's argument is that all of the arguments put in support of a claim made under s 44 of the Act must be matters that are within the jurisdiction of the Commission.  I do not, however, agree that this approach to the construction of the jurisdiction of the Commission is correct.

105   This application is a claim in part for a personal reclassification of Ms Spence.  Determination of this issue should turn on an assessment of relevant, reliable and probative evidence of the work performed by Ms Spence at Burbridge School and whether the work performed by her qualifies her to be employed as an untrained teacher, in particular an untrained swimming instructor by the Director General.

106   United Voice WA is seeking declarations that the duties and responsibilities of Ms Spence are teaching functions which are beyond the scope of the duties and responsibilities of an education assistant.  United Voice WA is not, however, seeking bare declarations.  The second part of its claim is that it seeks an order to compel the Director General to take steps as a nominee pursuant to Part 3 of the Teacher Registration Act 2012 (WA) to enable Ms Spence to obtain limited registration as a teacher.

107   In considering whether to make the declarations sought by United Voice WA, the Commission is required to interpret the provisions of the 2011 General Agreement and the 1993 Teachers Public Sector Award and may be required to interpret s 64 and s 65 of the School Education Act 1999 (WA) which set out the functions of a teacher.  Leaving aside the issue whether it is open to the Commission to make the declarations in the form sought by United Voice WA, such a task of interpretation of this legislation and industrial instruments is not beyond power:  Re Cram Mason CJ, Brennan, Deane, Dawson and Toohey JJ (149).

108   In Re Cram the Local Coal Authority found an employer had been wrong in standing down employees and that the employees were entitled to payment of wages.  The majority of the High Court found that the Authority was engaged in determining the rights of parties which it had no jurisdiction to do, because such an exercise was part of the judicial power of the Commonwealth.  Their Honours made it plain in their reasoning that ascertainment of whether the resolution of a dispute required the exercise of judicial power depended upon the nature of the dispute and not the arguments used to support the claim or the source of the claim.  At (155) Mason CJ, Brennan, Deane, Dawson and Toohey JJ found:

What the Unions sought from Mr. Cram was very different from the dispute determined by Mr. Lydon in Cessnock Collieries. There the dispute was about the applicability to past and future work of the conception of attendance money. In that case the Court pointed out ((1960) 103 C.L.R., at p. 23) that Mr. Lydon's jurisdiction or power depended on the existence of a dispute about a local industrial matter, not on arguments used to support the claim or the source from which the claim grew or upon the reasoning by which Mr. Lydon reached or justified his conclusion. Here, the dispute notified by the Unions involved no element of future conduct. Moreover, it asserted claims to payment of wages, without indicating that the claims were made on any basis other than that arising from the contracts of employment and the Awards. The way in which the applications were presented and dealt with confirms, as we have already said, that the dispute concerned the prosecutor's failure to pay wages in accordance with the employees' legal entitlement. Neither the presentation of the applications nor the decision suggests that the claim for payment was based on matters of industrial policy as distinct from matters of legal entitlement: cf. Reg. v. Spicer; Ex parte Australian Builders' Labourers' Federation ((1957) 100 C.L.R. 277, at p.306).

109   In determining whether the Director General should take steps to in effect reclassify Ms Spence by making an application to nominate her for limited registration as a teacher, it is necessary to prima facie determine whether Ms Spence has the necessary skills and experience which will provide her with some realistic prospects of success of obtaining limited registration as a teacher.

110   If the Commission, after considering all relevant and logically probative evidence, forms the opinion, by having regard to any relevant provisions of the School Education Act, the 1993 Teachers Public Sector Award and the 2011 General Agreement, that Ms Spence has over the period of time in question acquired the skills necessary to enable her to adequately carry out teaching duties and responsibilities of a teacher, it would be open to the Commission to make the findings of fact sought by United Voice WA but not the declarations sought by United Voice WA.  The declarations sought could constitute a finding that the Director General is in breach of the 2011 General Agreement, in particular the declarations in the form sought could be said to constitute binding declarations of right as to past events and thus an exercise of judicial power which are matters within the exclusive jurisdiction of the Industrial Magistrate's Court.  However, it is doubtful whether a prosecution for breach of the 2011 General Agreement in the Industrial Magistrate's Court could succeed.

111   Unless Ms Spence has limited registration as a teacher, if an application for breach of the 2011 General Agreement is brought before the Industrial Magistrate's Court, the Director General would be able to plead as a defence that since the Teacher Registration Act became operative on 3 July 2012, Ms Spence has not been registered as a teacher as required by Part 3 of the Teacher Registration Act.  Nor was Ms Spence at any material time prior to 3 July 2012 registered as a teacher as required by Part 4 of the Western Australian College of Teaching Act 2004 (WA) (repealed).

112   Section 30, s 31, s 36 and s 37 of the Western Australian College of Teaching Act, which were operative prior to 3 July 2012, provided:

30. Persons who may teach in schools

A person must not teach in a school unless the person —

(a) is a registered teacher; or

(b) holds a limited authority to teach and is teaching in accordance with that authority.

Penalty:

(a) for a first offence, $5 000;

(b) for a second or subsequent offence, $10 000.

31. Persons who may be employed, engaged or given permission to teach in schools

A person must not employ, engage or give permission to a person to teach in a school unless the person who is employed, engaged or given permission —

(a) is a registered teacher; or

(b) holds a limited authority to teach and is employed, engaged or given permission to teach in accordance with that authority.

Penalty:

(a) for a first offence, $5 000;

(b) for a second or subsequent offence, $10 000.

36. Limited authority to teach

(1) If satisfied that an applicant has —

(a) met the requirements regarding a limited authority to teach referred to in section 37; and

(b) paid the fee, if any, prescribed by the regulations in respect of a limited authority to teach,

then the College is to issue the applicant with a limited authority to teach.

(2) A limited authority to teach —

(a) may be issued for a period of up to 2 years after the day on which it commences, as is approved by the College and specified in the authority;

(b) is to specify —

(i) the school, or schools, at which the holder of the authority is authorised to teach; and

(ii) any limitations on the subject areas or teaching duties that apply to the holder of the authority;

and

(c) may be renewed.

37. Requirements for limited authority to teach

(1) The requirements for a limited authority to teach are that the applicant —

(a) has specialist knowledge, training, skills or qualifications;

(b) unless the College determines otherwise in a particular case, is proficient in the English language both written and oral;

(c) has been offered a teaching position, or positions, at a school or schools —

(i) for which position, or positions, a suitable registered teacher is, or teachers are, not available; and

(ii) subject to the applicant being the holder of a limited authority to teach;

(d) has not been convicted of an offence the nature of which renders the person unfit to be the holder of a limited authority to teach; and

(e) meets any other requirements prescribed by the regulations for the purposes of this section.

(2) On the application of the holder of a limited authority to teach the College may vary the information specified on a limited authority to teach under section 36(2)(b).

113   This scheme is substantially repeated in the provisions of the Teacher Registration Act.  Pursuant to s 31 of the Western Australian College of Teaching Act and s 7 of the Teacher Registration Act, the Director General was and is prohibited from employing a person as a teacher unless they are registered.  For reasons that follow, I am of the opinion that the terms of the 2011 General Agreement do not apply to the employment of persons who are not registered as a teacher as the terms of the 2011 General Agreement must be construed by regard to the scheme of employment of teachers employed in the public sector pursuant to the provisions of the School Education Act and the Teacher Registration Act.

114   However, in any event, the order sought is in my opinion severable from the declarations sought.  Consequently, even if the Commission has no jurisdiction to make the declarations sought it may be within the jurisdiction of the Commission in this matter to make the order sought.

115   It was argued by United Voice WA, in the proceedings at first instance, that Ms Spence has the qualifications for and has carried out the duties for some time of the work of an untrained swimming teacher.  The order sought is not an order that Ms Spence be paid as an untrained teacher in accordance with the provisions of the 2011 General Agreement.  The order sought is that the Director General make an application to the Teacher Registration Board for a limited authority to teach, whereby Ms Spence is the nominee of that application.

116   It is notable that cl 7 of the 2011 General Agreement defines an 'untrained teacher' to mean a person who does not have a teacher training qualification as determined by the employer.  In table 1, table 2 and table 3 of Schedule A of the 2011 General Agreement salaries, internal relief rates and casual rates of pay are prescribed for untrained teachers. 

117   Part 10 of the 2011 General Agreement sets out the qualifications necessary for swimming instructors.  The relevant provisions of Part 10 provide:

The provisions contained within this clause only apply to persons employed to instruct or supervise swimming classes organised through the Department.

Where a provision in this clause is inconsistent with any other provision contained within this Agreement, the provisions of this clause will apply.

Employees are not prevented from also being engaged as Swimming Instructors and Swimming Supervisors over student vacation periods.

38    SWIMMING INSTRUCTORS

38.1 Definitions

'Centre Supervisor' means a person employed by the employer to instruct or supervise swimming classes, who is responsible for the supervision of staff and who holds an approved qualification;

'Level 1 Instructor' means a person employed by the employer to instruct or supervise swimming classes, who holds an approved qualification and who has satisfactorily instructed fewer than 360 swimming lessons;

'Level 2 Instructor' means a person employed by the employer to instruct or supervise swimming classes, who holds an approved qualification and who has satisfactorily instructed more than 360, but fewer than 1500 swimming lessons;

'Level 3 Instructor' means a person employed by the employer to instruct or supervise swimming classes, who holds an approved qualification and who has satisfactorily instructed 1500 or more swimming lessons;

An 'in-term' lesson rate is 55/60 of an hourly rate and includes instructional time, changeover and other duties;

A 'vacation' rate is comprised of an hourly rate consisting of instructional time, changeover and other duties.

118   Clause 38.1 of the 2011 General Agreement provides for the classification of level 1, level 2 and level 3 instructors as persons who hold an 'approved qualification' and who have satisfactorily instructed a certain number of swimming lessons.  'Approved' in cl 7 of the 2011 General Agreement means approved by the employer.  Clause 6 of the 2011 General Agreement applies to employees employed by the Director General pursuant to s 235 of the School Education Act in the classifications outlined in s 237 of the School Education Act and reg 127 and reg 127A of the School Education Regulations 2000 (WA) who are members or are eligible to be members of the State School Teachers' Union of WA Incorporated.

119   A 'teacher' is defined in cl 7 of the 2011 General Agreement as a person defined in the School Education Act, and unless otherwise specified, the term is used to include the classifications identified in cl 15 of the 1993 Teachers Public Sector Award.  Section 4 of the School Education Act defines a teacher, in relation to a government school, as a member of the 'teaching staff' who is appointed under s 236(2) of the School Education Act.

120   Section 235, s 236 and s 237 of the School Education Act provides:

235. Categories of staff to be employed

(1) To enable the functions of the department to be performed persons are to be employed in the department —

(a) as public service officers appointed or made available under Part 3 of the PSMA; or

(b) as members of the teaching staff; or

(c) as other officers; or

(d) as wages staff.

(2) A person is not to be employed as a member of the teaching staff unless the person holds a qualification recognized by the chief executive officer as being an appropriate qualification.

(3) Subsection (1) does not affect the power of the chief executive officer to engage a person under a contract for services under section 100 of the PSMA.

236. Engaging etc. teaching staff, other officers and wages staff

(1) Part 3 of the PSMA does not apply to the teaching staff, other officers and wages staff.

(2) The powers to engage, transfer, promote and otherwise manage the members of the teaching staff, other officers and wages staff are vested in the chief executive officer.

(3) The terms and conditions of service of members of the teaching staff, other officers and wages staff are to be —

(a) in accordance with any relevant industrial award, order or agreement; and

(b) not less than those provided for by the Minimum Conditions of Employment Act 1993.

(4) Members of the teaching staff and other officers may be engaged —

(a) on a full‑time or part‑time basis; and

(b) for an indefinite period as permanent officers, or for a period not exceeding 5 years.

(5) Nothing in this section affects the operation of Part VID of the Industrial Relations Act 1979.

(6) For the avoidance of doubt it is declared that members of the teaching staff, other officers and wages staff are employed for and on behalf of the Crown.

237. Teaching staff, classes of

Without limiting section 29(1)(h) of the PSMA the teaching staff is to consist of the following classes —

(a) school administrators, that is —

(i) principals; and

(ii) any other office or position, or class of office or position, prescribed by the regulations;

and

(b) teachers other than school administrators; and

(c) any other class prescribed by the regulations.

121   Section 64 and s 65 of the School Education Act prescribe the functions of a teacher as follows:

64. Teacher’s functions

(1) The functions of a teacher in a government school are —

(a) to foster and facilitate learning in students; and

(b) to give competent instruction to students in accordance with —

(i) the curriculum; and

(ii) standards determined by the chief executive officer; and

(iii) the school’s plan referred to in section 63(1)(e),

and to undertake the preparation necessary to do so; and

(c) to undertake regular evaluation and reporting of the progress of students within the terms of the school plan referred to in section 63(1)(e); and

(d) to be answerable to the principal for the educational achievement of students under his or her instruction; and

(e) to supervise students and to maintain proper order and discipline on their part; and

(f) to carry out administrative duties to meet organizational requirements relevant to the teacher’s functions; and

(g) perform any other prescribed function assigned by the chief executive officer.

(2) The functions set out in subsection (1) have effect subject to —

(a) this Act; and

(b) the instructions of the chief executive officer; and

(c) the direction and control of the principal.

65. Assigned function etc. not to be inconsistent with industrial arrangements

Nothing in section 63(1)(i) or 64(1)(g) or section 64(2)(b) or (c) enables the chief executive officer or a principal to assign a function or give an instruction or direction that is inconsistent with a term or condition of service referred to in section 236(3).

122   Consequently, the 2011 General Agreement only applies to persons employed as principals, teachers and other offices or classes prescribed by the School Education Regulations.  The offices prescribed to be school administrators and classes of teaching staff under s 237 of the School Education Act are prescribed in reg 127 and reg 127A of the School Education Regulations.  None of these offices and classes are relevant to the appeal in this matter.

123   It follows therefore for the 2011 General Agreement to apply to the employment of a person such as Ms Spence, the person must be employed by the Director General as a teacher.  To be employed as a teacher the person must first be registered as a teacher.  To obtain limited registration as a teacher a person must not only be offered a teaching position, but must satisfy the Teacher Registration Board that they meet the prescribed requirements for registration.

124   Thus, it appears that the 2011 General Agreement is silent about the qualifications required for employment as an untrained teacher.  A determination whether a particular person should be employed as an unqualified teacher is regulated by the provisions of the Teacher Registration Act which prohibits a person being employed as a teacher, including an untrained teacher, unless they are registered as a teacher pursuant to the provisions of the Teacher Registration Act.  Under s 6 of that Act it constitutes an offence for a person to teach in an educational venue unless they are a registered teacher.  Under s 7 of the Teacher Registration Act it is an offence to appoint, employ, engage or give permission to another person to teach in an educational venue unless the other person is a registered teacher.

125   If a person such as Ms Spence wishes to be employed as an untrained teacher they can obtain limited registration under s 10(2) of the Teacher Registration Act.  Section 10 of the Teacher Registration Act contemplates that a person can be nominated for limited registration by the Director General.  The requirements for limited registration are prescribed by s 17 of the Teacher Registration Act.  Section 17 provides:

A person (the nominee) is eligible for limited registration as a teacher if the nominee —

(a) has been offered a teaching position in an educational venue by a person or entity; and

(b) is a fit and proper person to be a registered teacher; and

(c) has the English language skills, both written and oral, prescribed as suitable for limited registration as a teacher; and

(d) meets any other requirements for limited registration as are prescribed.

126   Section 12 of the Teacher Registration Act also relevantly provides:

An application for the grant or renewal of limited registration for a nominee is to be made by the person or entity, referred to in section 17(a), who made the offer of a teaching position to the nominee.

127   It is apparent that a person cannot obtain limited registration unless they fulfil the requirements of reg 12 of the Teacher Registration (General) Regulations 2012 (WA).  Regulation 12 of the Teacher Registration (General) Regulations provides:

(1) In this regulation —

Australian university and overseas university have the meanings given in the Higher Education Act 2004 section 3.

(2) For the purposes of section 17(d) of the Act, a nominee offered a teaching position is to meet one of the following requirements —

(a) the nominee —

(i) holds a qualification that is, in the Board’s opinion, a teaching qualification; and

(ii) meets the professional standards approved by the Board for full or provisional registration, or has done so within the previous 5 years;

(b) the nominee holds a qualification from an Australian university or an overseas university that is, in the Board’s opinion, relevant to the teaching position;

(c) the nominee has, in the opinion of the Board, expertise or skills in a subject relevant to the teaching position;

(d) the nominee is currently enrolled in an accredited initial teacher education programme delivered in a manner approved by the Board for the purposes of this paragraph;

(e) the nominee has successfully completed all of the course requirements for, but has not yet received, a teaching qualification from an accredited initial teacher education programme.

128   Consequently, a person such as Ms Spence cannot obtain limited registration to teach as an untrained teacher unless she is offered a teaching position by the Director General.

129   The remedy sought by United Voice WA is in effect to compel the Director General to offer Ms Spence a teaching position and make an application to nominate Ms Spence in an application to the Teacher Registration Board for limited registration.  The Commission would be firstly required to determine whether the Director General should be compelled to offer Ms Spence a teaching position.  However, unless Ms Spence is able to meet the requirements in reg 12 of the Teacher Registration (General) Regulations, it would be futile to compel the Director General to offer Ms Spence a teaching position and to make an application to nominate her for limited registration by an order made by the Commission.

130   In determining whether this relief should be granted the Commission is required to consider and make findings of fact whether Ms Spence has the necessary skills and experience so that it would be right and fair that she be offered a teaching position and that the Director General be compelled to make an application to nominate Ms Spence.  It should also consider whether in all of the circumstances it is fair that the Director General be required to offer her a teaching position.  Whether, in fact, Ms Spence should be granted limited registration as a teacher is not a matter the Commission can determine.  It is a matter for the Teacher Registration Board and is reviewable by the State Administrative Tribunal pursuant to s 21 and s 124 of the Teacher Registration Act.

131   Leaving aside the declarations sought by United Voice WA, I do not agree that the order sought is an attempt to enforce the 2011 General Agreement.  It is clear that the Commission is empowered with the jurisdiction to make the order.

132   Until registered, a person cannot be classified within the meaning of the 2011 General Agreement as an 'unregistered teacher'.  Consequently, any application to the Industrial Magistrate's Court for enforcement of the 2011 General Agreement in these circumstances would fail.  In any event, what is sought by United Voice WA is the creation of a new right and obligation in respect of the employment of Ms Spence; that is the right to seek limited registration as a teacher, which is a preliminary step to the 2011 General Agreement operating to cover the terms and conditions of employment of Ms Spence.  Even if the Commission grants the order sought by United Voice WA, and I make no observations as to whether it should grant this relief, unless the Teacher Registration Board grants Ms Spence limited registration the provisions of the 2011 General Agreement will not apply to the employment of Ms Spence.

133   Turning now to the grounds of appeal, I am of the opinion that with the exception of paragraph 1(c) of ground 1 of the appeal, this ground has been made out.

134   I am not satisfied that ground 2 of the appeal is made out.  The Director General raised the issue of jurisdiction in paragraph 14 of closing submissions filed on 10 December 2013.  United Voice WA then had an opportunity of considering the Director General's submissions, including the jurisdiction issue raised in paragraph 14 before it filed its closing submissions some 10 days later on 20 December 2013.

135   In light of my findings in respect of ground 1 of the appeal, I do not find it necessary to deal with ground 3 of the appeal.

136   For these reasons, I am of the opinion that an order should be made to allow the appeal, suspend the operation of the decision in CR 51 of 2012 and remit the case to the Commission for further hearing and determination.

BEECH CC:

137   I have had the advantage of reading in draft form the Reasons for Decision of Her Honour the Acting President.  I agree for the reasons she has given that the decision of the Full Bench in Arpad Security Agency v FMWU (1989) 69 WAIG 1287 should not be overruled.  I agree that the Full Bench should make an order to extend time to United Voice WA to institute an appeal against the decision of the Commission.

138   I also agree for the reasons given by Her Honour that the appeal should be allowed and agree with the order proposed.

KENNER C:

139   A dispute came before the Commission under s 44 of the Act, in which, the appellant, as applicant at first instance, claimed that its member Ms Spence had been incorrectly classified. The appellant contended that Ms Spence had been working as an untrained swimming teacher for many years. The appellant contended that Ms Spence was incorrectly classified as an education assistant.  She should have been classified, according to the appellant, as an untrained teacher. The dispute was not resolved by conciliation. The matter was referred for determination. The appellant sought declarations that the work performed by Ms Spence was comprised of teaching functions and beyond the scope of the duties of an education assistant. The appellant also sought an order that the respondent be required to make an application to the Teacher Registration Board, for Ms Spence to obtain a “limited authority to teach”. This is apparently a prerequisite to a person being classified as an untrained teacher under the terms of the relevant industrial agreement.

140    The Commission at first instance upheld the submission of the respondent that the effect of the declaration sought by the appellant, was to enforce the terms of the industrial agreement, contrary to s 83(3) of the Act. Accordingly the application was dismissed. The appellant now appeals.

141    As the appeal was filed three days out of time, the appellant also sought an order to extend time, purportedly by the exercise of the power under s 27(1)(n) of the Act. This was opposed by the respondent, on the basis that it contended that the Full Bench has no power to extend time. The contentions raised by the parties as to this preliminary issue, and the grounds of appeal generally, are set out in the reasons of Smith AP and it is not necessary to repeat them.

Power to extend time

142    A number of statutory provisions are relevant to the discussion of this issue. It is convenient to refer to them now. First, are ss 27(1)(n) and 49(2) and (3) which relevantly provide:

27. Powers of Commission

(1) Except as otherwise provided in this Act, the Commission may, in relation to any matter before it —

…

(n) extend any prescribed time or any time fixed by an order of the Commission; and

…

49. Appeal from Commission’s decision

…

(2) Subject to this section, an appeal lies to the Full Bench in the manner prescribed from any decision of the Commission.

…

(3) An appeal under this section shall be instituted within 21 days of the date of the decision against which the appeal is brought and may be instituted by —

(a) any party to the proceedings wherein the decision was made; or

(b) any person who was an intervener in those proceedings.

143    Further, as the respondent relied heavily on a decision of the Industrial Appeal Court in Saldanha v Fujitsu Australia Ltd (2009) 89 WAIG 875, appeals to the Court arise under s 90(2) of the Act which is in these terms:

90. Appeal from Commission to Court

(1) Subject to this section, an appeal lies to the Court in the manner prescribed from any decision of the President, the Full Bench, or the Commission in Court Session —

(a) on the ground that the decision is in excess of jurisdiction in that the matter the subject of the decision is not an industrial matter; or

(b) on the ground that the decision is erroneous in law in that there has been an error in the construction or interpretation of any Act, regulation, award, industrial agreement or order in the course of making the decision appealed against; or

(c) on the ground that the appellant has been denied the right to be heard,

but upon no other ground.

(2) An appeal under this section shall be instituted within 21 days from the date of the decision against which the appeal is brought and may be instituted —

(a) by any party to the proceedings wherein the decision was made; or

(b) by any other person who was an intervener in those proceedings.

144    At the outset, the parties referred to consistent reference being made in the past to the decision of the Industrial Appeal Court in Cousins v YMCA of Perth (2001) 82 WAIG 5. It was common ground however, that in Cousins, the matter of the power to extend time for instituting an appeal to the Full Bench was not in contest in those proceedings. Rather, the focus in the case was the existence or otherwise, of a power to institute a cross-appeal to the Full Bench.

145    The right to commence an appeal to the Full Bench of the Commission under s 49 of the Act, as with appeals generally, is a substantive right, and is not merely a procedural step: The Colonial Sugar Refining Company, Limited v Irving [1905] AC 369.

146    In Saldanha the issue was the competency of the appeal, it being filed outside of the 21 day time limit in s 90(2) of the Act. Wheeler JA (Pullin JA and Le Miere J agreeing) concluded that the Court is a statutory court with limited jurisdiction. The right of appeal is a creature of statute and the Court found no express power to extend time. The Court concluded, in considering and applying the decision of the New South Wales Court of Appeal in Patterson and James v Public Service Board of NSW (1984) 1 NSWLR 237, that the terms of s 90(2) are mandatory, and there is no basis to imply a power to extend time. Provisions of the Industrial Relations (Western Australian Industrial Appeal Court) Regulations 1980 were of no assistance. The Court also noted the relevant objects of the Act in s 6 and referred to the focus in the objects on negotiated outcomes and finality of proceedings, in particular in light of the restricted right of access to the Court on appeal.

147    In Patterson, the New South Wales Court of Appeal concluded that the terms of s 55(1) of the Government and Related Employees Appeal Tribunal Act 1980 (NSW) was mandatory and compliance with the time limit of 21 days to lodge an appeal, was a jurisdictional fact. Whilst the Supreme Court Rules 1970 (NSW) had application to appeals to the Court, they contained inconsistent provisions for time limits and the specific and mandatory terms of s 55(1) prevailed over the general provisions of the Rules. Thus, an appeal lodged outside of this time limit, was incompetent.

148    A “jurisdictional fact”, is a criterion, satisfaction of which enlivens the exercise of a statutory power or discretion: The Laws of Australia, vol 2 [2.4.2170]. A jurisdictional fact identifies a criterion, satisfaction of which mandates a particular outcome: Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135. The ascertainment of a jurisdictional fact involves the proper construction of a statute, in terms of the language used and the scope of the jurisdiction concerned: Ex parte Redgrave; Re Bennett (1945) 46 SR (NSW) 122 at 125.  It is more likely that a tribunal, rather than a superior court, will have its jurisdiction conditioned by the existence of a jurisdictional fact in this way: R v The Judges of the Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Limited (1978) 142 CLR 113 per Mason J at 124-127. There also is a tendency by courts not to treat facts as jurisdictional unless the legislative scheme clearly suggests it: Parisienne Basket Shoes Proprietary Limited v Whyte (1938) 59 CLR 369.

149    There have been a number of cases where it has been held that compliance with time limits is a jurisdictional fact, for example: Bailey v Commissioner of Police [2014] NSWIRComm 53; Rail Corp (NSW) v Brown (2012) 219 IR 67; Patterson; Secretary of Department of Health (NSW) v Harvey (1990) 34 IR 58; Matkevich v New South Wales Technical & Further Education Commission (NSW) (1995) 65 IR 46; Hocine v Minister for Immigration and Multicultural Affairs (2000) 99 FCR 269.

150    In Bailey an application was made to the Industrial Relations Commission of New South Wales by a police officer, challenging his removal from the Police Force. Provisions of the Police Act 1990 (NSW) adopt and apply with some modifications, relevant provisions of the Industrial Relations Act 1996 (NSW) to such claims. Instead of 21 days, applications “must” be made within a time limit of 14 days.  Further, the terms of s 85(3) of the IR Act (NSW), which enables the Industrial Relations Commission to “accept an application that is made out of time”, which is in very similar terms to s 29(3) of the Act, has no application to police claims.  Walton J, on a challenge to the competency of a claim brought out of time, held at par 21 that the reference to “must” in s 85(1) of the IR Act (NSW) indicated a legislative intention to make the filing of a claim within the specified time limit obligatory. Having regard to the legislative intention, his Honour concluded that, in applying the principles set out in Patterson compliance with the time limit was a condition precedent to the institution of a valid appeal. There is no general procedural power to extend time in the IR Act (NSW).

151    Of note for present purposes, by s 189(1) of the IR Act (NSW), appeals to the Full Bench of the New South Wales Commission must be made within 21 days after the date of the decision appealed against “or within such further time as the Full Bench or the Commission constituted by a Presidential Member allows”. Section 189(2) expressly enables an extension of time, either before or after the time limit has expired. Thus the power to extend time in this legislation, resides in the substantive power to appeal itself.  No such provision is contained in s 49 of the Act. Had the Parliament intended s 49 to operate the same way, it could simply have inserted words to this effect.

152    In Rail Corp an appeal was brought by a former employee under s 13 of the Transport Appeal Boards Act 1980 (NSW), which provided that such an appeal “shall be lodged with the secretary within 21 days after notice in writing of the decision to be appealed against is given to the appellant”. The Full Bench of the Industrial Relations Court of New South Wales held that it could read into the legislation a power to extend the time limit. On appeal, the Court of Appeal held (per Bathurst CJ; Beazley and Basten JJA agreeing) that this was not permissible, and that the language of the provision, in the context of the statute as a whole, and having regard to the mischief addressed in the statute, found that the time limit was a precondition to a valid appeal. Similar conclusions were reached in Matkevich and in Hocine (see too: Christies Sands Pty Ltd v City of Tea Tree Gully (1975) 11 SASR 255; Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386).

153    Undistracted by s 27(1)(n) of the Act, in my view, s 49(3) is similarly, as was the case in Patterson, and the other cases referred to in pars 149 and 152 above, a jurisdictional fact. Compliance with the time limit is a precondition to the institution of a valid appeal to the Full Bench. The language of s 49(3) is almost identical to the language used in s 90(2) of the Act, prescribing the time limit for an appeal to the Court. In both cases, the language is expressed in mandatory terms. An appeal “shall be instituted within 21 days”. This conclusion is fortified by reference to the objects of the Act in s 6, as discussed in Saldanha, referred to below.

154    Does then s 27(1)(n) of the Act have application to s 49(3)?  It has been held by the Industrial Appeal Court in the past, that s 27(1) is comprised of largely machinery type provisions, prescribing the way the Commission deals with matters already properly before it, and does not enlarge or confer jurisdiction on the Commission, that it does not otherwise have: Robe River Iron Associates v Federated Engine Drivers’ and Firemens’ Union of Workers of Western Australia (1986) 67 WAIG 315.  In Robe River, the Court came to consider the use by the Commission of the power in s 27(1)(v) of the Act, purportedly used to support interim orders compelling the employer to maintain a minimum level of manning on machinery, pending the determination of the dispute by arbitration. On appeal to the Court, it was held that s 27(1)(v) could not support such an order. As to the scope of the powers available to the Commission under s 27(1) of the Act, Brinsden J said at 317:

Under section 27(1)(v) the only things that may be done are giving of directions and doing all such things as are necessary or expedient “for the expeditious and just hearing and determination of the matter”. All the other items of power provided by section 27 with possibly two or three exceptions are particular matters of procedure relevant to the hearing and determination of the matter. Three of the items are concerned with entry upon a manufactory or similar type of building, inspection of work and machinery and other items in any such manufactory or building, and questioning any person who may be in or upon any such manufactory or building, all of which items might be regarded as items giving the Commission power to better inform itself in respect of the subject matter of a dispute. The interim order is one which directly deals with an industrial procedure in the industry in respect of which the parties are engaged. The respondent contends that section 27(1)(v) supports such an order but for that to be so then the subsection must be given a very wide interpretation beyond being merely a dragnet clause to cover any other form of direction or order or action of a procedural nature not covered specifically by the foregoing items. The Commonwealth Conciliation and Arbitration Act 1904 and Amendments has a similar provision to section 27 in section 41 and it contains in section 41(1)(o) an identical provision to section 27(1)(v). That subsection in the Commonwealth Act, when it was section 40(1)(p), was considered in the case of Gas Employees (Victoria) Award and Ors. (1948) 61 CAR 200 when it was held that it amounted to a machinery provision only. As the Court held, a section like section 40 or 41 is a section which enables the Court to deal with matters which have been properly brought before it. They do not confer substantive jurisdiction but merely legislate for the method by which the Court may exercise the jurisdiction already conferred upon it by other sections. I see no significant difference between the Commonwealth Act and the Act to justify us in giving to section 27(1)(v) any wider construction other than as a machinery provision. It would not support an order which is in the nature of an interlocutory injunction directly dealing with the manner in which the parties to an industrial dispute are to continue to conduct a facet of the industrial enterprise in which they are jointly engaged upon.

155    Further consideration was given to s 27(1) by Kennedy J. After setting out the section, and stating that the order under challenge was not able to be supported by s 27(1), his Honour said at 319:

With the exception of the powers contained in paragraphs (a) and (c), each of the paragraphs prior to paragraph (v) deals with evidentiary or interlocutory procedural matters, and it is with respect to such matters that paragraph (v), in my opinion, also deals. The present order bears no relation to the ‘hearing’ of the matter as such. Nor does it, in my view, relate to the determination of the matter, “determination” representing the final disposition of a matter. (Compare the use of the words ‘hear’ and ‘determine’ in section 44(9) of the Act). To hold otherwise would be to give the Commission a very great scope for making coercive interim orders without any firm criteria and without the special procedures required by section 32(4) in the case of orders under section 32(3)(c)(i).

What the Commission was seeking to do here was to make such an order as would have been authorised by the terms of section 32(3)(c)(i), in the absence, however, of any express power. The present order, in my view, requires an express power if it is to be sustained. Section 27(1) is concerned with the method by which the Commission exercises jurisdiction already conferred on it, and does not confer substantive jurisdiction – see the Gas Employees Awards and Agreements Case (1948) 61 CAR 200.

156    (See too: Re The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers – Western Australian Branch (2000) 106 IR 13).

157    Reference was also made in argument to the decision of Fielding C in Richardson v Cecil Bros Pty Ltd (1994) 74 WAIG 1017. In that case, the Commission held that the then s 29(2) of the Act, prior to the enactment of the present s 29(2) and (3), which provided that unfair dismissal claims “cannot” be made more than 28 days after the date of dismissal, was mandatory, and the general power to extend time in s 27(1)(n) was incidental to jurisdiction already established (see the consideration of this issue in Aurion Gold v Bilos (2004) 84 WAIG 3759 per McLure J, (Steytler J agreeing) at pars 22-23). In Aurion Gold too, McLure J said at par 28, that the terms of s 27(1)(n), would be expected to apply to a time limit that was procedural, and not substantive.  In my view, in the context of Saldanha, Patterson, and Aurion Gold, the conclusion is compelling that the line of reasoning adopted in Richardson, applies to the present circumstances.

158    Consideration needs to be given to an earlier decision of the Full Bench in Arpad Security Agency Pty Ltd v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous WA Branch (1989) 69 WAIG 1287.  In Arpad, an appeal was lodged under s 84(3) of the Act, out of time. A challenge was made by the respondent to the effect that the power in s 27(1)(n) was procedural, and could not resuscitate an appeal that was not brought within time.  In rejecting that contention, the Full Bench referred to and relied upon a decision of the High Court in Re Coldham and Others; Ex parte The Australian Building Construction Employees’ and Builders Labourers’ Federation (1985) 159 CLR 522.  In that case, it was held by the Court that the terms of the then s 41(1)(m) of the Conciliation and Arbitration Act 1904 (Cth) enabled the Australian Conciliation and Arbitration Commission to extend time for lodging an appeal under s 35(4) of the federal legislation. Notably, whilst s 41(1) of the federal legislation was similar to s 27(1), it was not the same.  It was expressed in wider terms to s 27(1)(n). It did not contain the important phrase “Except as otherwise provided in this Act” as appears in the preliminary part of s 27(1).

159    Further, the consideration of the objects in the Act by the Court in Saldanha, stands in contrast to the consideration of the objects of the then federal legislation in Re Coldham. Given that the consideration of s 6 of the Act by the Court in Saldanha is a recent exposition of the terms of the legislation by the Industrial Appeal Court directly applicable in this State, then in my view, when read with Aurion Gold, the approach adopted by the Court in Saldanha should be adopted by the Full Bench. Therefore having regard to these points of distinction, I consider that the decision of the Full Bench in Arpad Security should be regarded as now having been overtaken by the combined effect of both Saldanha and Aurion Gold.

160    For the foregoing reasons, I would conclude that the appeal is incompetent and must be dismissed.

Grounds of appeal

161    In the alternative, if I am incorrect on the extension of time issue, as to the grounds of appeal, for the reasons expressed by Smith AP, I agree that the appeal should be upheld. I agree that the decision of the learned Commissioner at first instance should be suspended, and the matter be remitted to the Commission for further hearing and determination.